JUDGMENT 1. - The accused-appellant is aggrieved by the judgment dated 16.5.1989 passed by the learned Additional Sessions Judge, Barmer (for short ' the trial Court') in Sessions Case No. 13/1989, whereby the learned trial Judge convicted the accused-appellant Oman S/o Safi Mohd. R/o Tirsingadi, Tehsil and District-Barmer for offence punishable under Sections 18 and 21 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 Rs. 1 Lac, in default of payment whereof to further undergo one year's rigorous imprisonment, for each of the offences, under Section 18 and Section 21 of the Act. 2. In short, facts of the case are that on 19.11.1988 Poonam Chand (PW-9), S.H.O., Police Station-Girab along with C.O., Barmer and the Police personnel proceeded from Magra for patrolling and blockade, reached within, area of Baleba, Dedriyar for trapping suspected illegal trafficking and smugglers' hide outs. During the blockade, at around 3.30 A.M. one person, wearing shirt and 'tehmad' (fold-tied lower), was seen coming from village Detani. When he was called by S.H.O. Punam Chand and Constable Veer Singh (PW-1), he started running towards western side, who Police partly chased and intercepted. When his name and residence was enquired, he could not reply. 3. Upon searching that person, black substance tied in a polythene pouch was found from his pocket. When he was asked about that substance, he disclosed his name Oman S/o Shafi Mohammed, Muslim, resident of Tirsigadi and told that black substance is opium. Thereupon, the C.O., the S.H.O. and motbirs when sniffed and tasted that black substance, found the same to be opium, for which that person (Oman) had no permit. The opium so recovered was weighed and found 100 gms in weight, out of which 30 gms was taken out for sampling and the sample as also remaining opium were sealed. 4. When Omen was further enquired by the Circle Officer, Barmer then Oman, voluntarily, under Section 27 of the Evidence Act, gave information that at sand dunes near Tirsigadi, under the roots of a Ker tree, a bag containing heroin has been hidden. In accordance with this information, the accused Oman lead the Police party to the described tree and got. recovered bag containing heroin. The bag so recovered was opened, sniffed and tasted and found to contain heroin. In accordance with this information, the accused Oman lead the Police party to the described tree and got. recovered bag containing heroin. The bag so recovered was opened, sniffed and tasted and found to contain heroin. Oman did not have permit to possess that heroin as well. The heroin so recovered was weighed and found to be 900 gms along with bag, out which sample of 30 gms was extracted for chemical analysis. The sample and the remaining heroin in the bag were sealed separately. Necessary process was carried out at the site and various memos were prepared. 5. The police party reached to Police Station, along with accused-appellant Oman, CR No. 52/1988 (Ex.P-12) was registered for offence under Sections 17, 18, 21 of the N.D.P.S. Act and the recovered contraband substances were deposited in the Malkhana and investigation in the matter commenced. 6. After due investigation, on 15.2.1989 Police filed challan against the accused-appellant for offence under Sections 8(c), 18, 21 of the N.D.P.S. Act before learned Munsif and Judicial Magistrate, Barmer, from where the case was committed to the Court of Additional Sessions Judge, Banner for trial of 27.2.1989. 7. The trial Court, on 10.3.1989 framed charges under Sections 18, 21 of the 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 nine witnesses and exhibited 14 documents as also four articles as Ex.Art.-1 to Ex. Art.-4. Statement of accused-appellant was recorded under Section 313 Cr.P.C. wherein he contended false implication in the case and categorically denied alleged recovery of contraband from his possession or upon his information. In defence, two witnesses DW-1 to DW-2 were examined. 9. After scrutiny of the material on record, appreciation of evidence produced by the prosecution, statements of the accused 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 16.5.1989 convicted the accused-appellant for offence under Sections 18 and 21 of the N.D.P.S. Act and sentenced him as aforesaid. 10. Aggrieved by the conviction and imposition of sentence vide impugned judgment dated 16.5.1989 passed by the learned Additional Sessions Judge, Barmer, this appeal has been preferred by the accused-appellant. 11. Heard learned counsel for the accused-appellants as well as learned Public Prosecutor. 12. 10. Aggrieved by the conviction and imposition of sentence vide impugned judgment dated 16.5.1989 passed by the learned Additional Sessions Judge, Barmer, this appeal has been preferred by the accused-appellant. 11. Heard learned counsel for the accused-appellants 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 prosecution witnesses, comprised solely on Police Officials. Learned trial Court placed reliance on the testimony of Veer Singh, Head Constable (PW-1) and Rajendra Singh, Constable (PW-3) both motbirs recovery memo of opium (Ex.P-1). Veer Singh, head Constable (PW-1) and Kalu Khan (PW-4), both were motbirs of Ex.P-3 recovery memo of said heroin. These all are Police Officials. 13. Other witnesses of the prosecution were-Gajanand Verma (PW-2)- C.O., Barmer; Jethu Singh, Constable (PW-5); Hamja Khan, Constable (PW-6); Rewat Singh, Head Constable (PW-7); Panne Singh (PW-8), Driver of Police Vehicle and Poonam Chand, S.H.O. Girab-the Recovery Officer and the Investigating Officer (PW-9) in this case. So, in absence of any independent witness, the prosecution story is doubtful. All the witnesses are Police officials they are not supported by any other independent witness. No attempt was made by the Poonam Chand, S.H.O. (PW-9) and Gajanand Verma, C.O., Barrner (PW-2) for procuring attendance of independent witness in this case. 14. Learned counsel also submitted that.there are serious contradictions in the statement of prosecution witnesses and as such, no reliance can be placed upon their testimony without any independent corroboration. The version given by the prosecution witnesses seems to be fully unnatural and concocted one. 15. He further submitted that the prosecution failed to prove recovery of 900 gms heroin at the instance of the accused-appellant. As regard alleged information given under Section 27 of the Evidence Act (Ex.P-4), no date, time and place has been mentioned in this document produced by the prosecution. From the perusal of recovery memo of heroin (Ex.P-3), it is borne out that said heroin was recovered at 6.30 A.M. from village Tirsingadi, which is admittedly situated in jurisdiction of Police Station, Barmer Sadar. In the recovery memo Ex.P-3, it is mentioned that packet of heroin was produced by the accused-appellant. It is also not clear as to when the information Ex.P-4 is said to have been recorded by the Dy. S.P. and Ex.D-4 is said to have been recorded by the S.H.O., Poonam Chand (PW-9). In the recovery memo Ex.P-3, it is mentioned that packet of heroin was produced by the accused-appellant. It is also not clear as to when the information Ex.P-4 is said to have been recorded by the Dy. S.P. and Ex.D-4 is said to have been recorded by the S.H.O., Poonam Chand (PW-9). Ex.D-4 is said to be have been given at about 11 P.M. to the S.H.O. Poonam Chand. 16. From contents of Ex.P-4, it can be said that recovery seems to have been made in pursuance of this information. According to the memo, which has been mentioned by Gajanand Verma (PW-2) as memo of recovery and checking, which was marked as Ex.D-1, the recovery seems to have been made at 3.30 A.M. on 19.11.1988. 17. Thus, whole proceeding conducted by Gajanand Verma (PW-2) and Poonam Chand (PW-9) are not result of factual investigation and no reliance can be placed on such record, without being corroborated by independent witness, although village was situated at a distance of only 250 paces from said place of recovery and witnesses could have been available from the village. 18. It is further submitted that the mandatory provisions of Section 50 of the N.D.P.S. Act have not been complied with in the present case. There is no mention of compliance of Section 50 of the N.D.P.S. Act in the Ex.P-1 recovery memo of said opium. Ex.P-2 is arrest memo of the accused-appellant. No separate memo to make compliance of Section 50 of the N.D.P.S. Act was made and in these circumstances, it cannot be said that compliance of Section 50 of the N.D.P.S. Act was made in its letter and spirit and on this ground alone, the accused-appellant is entitled to acquittal. 19. It is further submitted that there are major contradictions in the statement of Police Official witnesses and the prosecution failed to comply with the mandatory provisions of Sections 42, 50, 55, 57 of the N.D.P.S. Act. In support of his submission, learned counsel for the accused-appellant placed reliance upon judgment delivered by Hon'ble Apex Court in the Case of Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 . 20. In support of his submission, learned counsel for the accused-appellant placed reliance upon judgment delivered by Hon'ble Apex Court in the Case of Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 . 20. It is further contended that in the present case, compliance of Section 42 of the N.D.P.S. Act has not been done inasmuch as after Sunset and before the Sunrise, search of the accused-appellant and the place is said to have taken place, without obtaining a warrant and further, no comment for not obtaining warrant has been recorded, therefore, it is a case where mandatory provisions of the N.D.P.S. Act have not been complied with and the accused-appellant is entitled to acquittal. Learned counsel for the accused-appellant placed reliance upon judgments in the cases of Bekadon Abdul Rehman v. State of Kerala, 2000 (2) Cr.L.R. (SC) 430 , Prahlad Ram v. State of Rajasthan, 2005 (2) Cr.L.R. (Raj.) 1205 and Rajendra Singh v. State of Haryana, (2011) 8 SCC 130 . 21. He further argued that it has been admitted by the prosecution witnesses even at the time of personal search, the accused-appellant was initially caught by Kishore Singh but the prosecution has not produced this important witness Kishore Singh in evidence. The site plans-Ex.P-12 and P-13, were not prepared at the time of recovery but after 3-4 days prepared by the Investigating Officer. 22. 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 be 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, not produced in the Court and not sent to the F.S.L. for comparison of the seal. Thus, alleged recovery the contraband opium and heroin from conscious possession of the accused-appellant becomes doubtful and the prosecution failed to prove that said seized article was contraband opium and heroin, as defined under the N.D.P.S. Act. Thus, alleged recovery the contraband opium and heroin from conscious possession of the accused-appellant becomes doubtful and the prosecution failed to prove that said seized article was contraband opium and heroin, as defined under the N.D.P.S. Act. He relied upon decision of Hon'ble Supreme Court in Gurbux Singh v. State of Haryana, 2001 Cr.L.R. (SC) 166 , State of Rajasthan v. Gurmail Singh, JT 2005 (2) SC 574 and a decision of this Court in Raja @ Gurubachan & Ors. v. State of Rajasthan, 2005 (2) Cr.L.R. (Raj.) 1222 . Hence, he prayed that this appeal be allowed and the accused-appellant be acquitted from the charge framed against him. 23. On the other hand, Mr. Ashok Prajapat, learned Public Prosecutor submitted that there is no reason to disbelieve the testimony of prosecution witnesses and only because they are Police Officials, their testimony cannot be discarded. He also submitted that provisions of the N.D.P.S. Act are complied with in this case. The provisions of Sections 55 and 57 of the N.D.P.S. Act are merely directory in nature and not mandatory. The prosecution has complied with all the mandatory provisions of the N.D.P.S. Act. From entire evidence produced by the prosecution, the recovery of the recovered contraband opium and heroin from possession of the accused-appellant is proved. There is no contradiction and the evidence placed by the prosecution is reliable. 24. 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. 25. The controversy as to the effect of non-compliance of the provisions of Section 50 of the N.D.P.S. Act has been set at rest by the Hon'ble Apex Court in series of judgments. It is correct that compliance of provisions of Section 50 of the Act is mandatory. 25. The controversy as to the effect of non-compliance of the provisions of Section 50 of the N.D.P.S. Act has been set at rest by the Hon'ble Apex Court in series of judgments. It is correct that compliance of provisions of Section 50 of the Act is mandatory. Learned counsel for the accused-appellant cited recent judgment of Hon'ble Apex Court in the case of Vijaysingh Chandublta Jadeja (supra) wherein while relying upon few' pronouncements in other decisions, their Lordships again propounded that the requirement of informing suspect person of his right envisaged under Section 50 of the N.D.P.S. Act is mandatory and concept of 'substantial compliance' is not applicable to Section 50 of the Act and observation of safeguards provided under the N.D.P.S. Act are to be strictly construed. Hon'ble Apex Court further explicitly held that insertion of sub-sections (5) and (6) to Section 50 of the Act by amendment of 2001 diluted the procedure under Section 50 of the Act only in the circumstances mentioned therein and that too, subject to additional protection provided by said amendment and such insertion does not obliterate mandate of Section 50(1) of the Act, to inform the suspect of his right so envisaged. 26. Reference may be made to a decision of the Constitutional Bench of the Hon'ble Apex Court in the case of State of Punjab v. Baldev Singh, AIR 1999 SC 2378 , wherein their, Lordship, after detailed discussion on various cases, recorded conclusion in Para No. 57 of the judgment. Relevant portions of the conclusion are quoted herein below: "57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessary be in writing; XXX XXX XXX XXX (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. However, such information may not necessary be in writing; XXX XXX XXX XXX (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under a cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. XXX XXX XXX XXX (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law." 27. The compliance of the safeguards stipulated in Section 50 of the N.D.P.S. Act is mandatory, obliging upon the officer concerned to inform the person to be searched, of his right to demand that search could be conducted in the presence of a Gazetted Officer of a Magistrate. The possession of illicit article has to be satisfactorily established before the Court. 28. The possession of illicit article has to be satisfactorily established before the Court. 28. The purpose of informing the suspect that search could be taken in the presence of a Gazetted Officer is to ensure that there is safeguard against planting any incriminating article. These provisions have been made in order to protect interest of citizen from irregularity and illegal invasion of his liberty by the authorities as well as in the interest of the State, to secure evidence having a bearing upon commission of the crime and necessary to enable justice to be done, was not withheld from Courts of law and merely formal and technical grounds. The object of making it peremptory on the part of the officer is to ensure that the officer, who is charged with the duty of conducting search, should conduct it property and not to harm by wrong such as planting of offending drug by any interested party and to prevent fabrication of any evidence. 29. The provisions of Section 50 of the N.D.P.S. Act have been made with the intention to act as safeguard against vexatious and unfair proceedings. The provision has also been incorporated in order to protect and safeguard interest of an innocent person. If a person is searched before a Gazetted Officer or before a Magistrate, as the case may be, then it will provide a weapon to law enforcement agency against the allegation such as that the opium or heroin has been planted by the investigating agency. It also provides a protection to the law enforcement agency. 30. The rational behind this provision is manifest. A search before a Gazetted Officer would impart much more authenticity and creditworthiness to the proceeding and it would verily strengthen the prosecution. Hon'ble Supreme Court in K. Mohanan v. State of Kerala, 2000 SCC (Cri.) 1128 and in Ahmed v. State of Gujarat, JT 2009 (9) SC 416 , held that compliance of the provisions of Sections 42 and 50 of the N.D.P.S. Act is necessary. Even if the officer searching be himself a Gazetted Officer, right of the accused cannot be denied. 31. Even if the officer searching be himself a Gazetted Officer, right of the accused cannot be denied. 31. From the perusal of above two rulings of Hon'ble Apex Court, it becomes crystal clear that the officer concerned must inform the suspect person, of his right to be searched before a Gazetted Officer of before a Magistrate and failure to do so would cause prejudice to such person. Merely asking the accused whether he is required to be produced before a Gazetted Officer 'or before a Magistrate for the purpose of search but not informing about his right in that behalf under law, this would mean that the mandatory requirement of Section 50 of the N.D.P.S. Act has not been satisfied. 32. Honble Supreme Court in so many other cases held that the provisions of Section 50 of the N.D.P.S. Act is mandatory in nature and violation of the provision would per se be fatal to the prosecution case or, in other words, non-compliance of this provision would have the effect of vitiating the entire trial. Keeping the above position in mind, when we examine the present case then it is clear, that there is no compliance of the provisions stipulated under Section 50 of the N.D.P.S. Act in this case. 33. Undisputedly, the provisions of Section 50 of the N.D.P.S. Act are mandatory in character and violation thereof is fatal to the prosecution and every officer, duly authorised under Section 42 of the Act, when he is about to search a person, is bound to inform the suspect that he has right to be searched before a Gazetted Officer or before a Magistrate. If the suspect makes a choice then it is obligatory for the authorised officer to take him either before a Gazetted Officer or a Magistrate. Sub-section (3) of Section 50 of the Act empowers a Gazetted Officer or a Magistrate to direct either discharge of the person forthwith or search be made. 34. It is settled principle of criminal jurisprudence that when a safeguard or a right is provided, favoring an accused, compliance thereto should be strictly construed and non-compliance of such provision would cause prejudice to the accused. In the case, it is clear that in the recovery memo (Ex.P-1) there was nothing about compliance of Section 50 of the N.D.P.S. Act. It is settled principle of criminal jurisprudence that when a safeguard or a right is provided, favoring an accused, compliance thereto should be strictly construed and non-compliance of such provision would cause prejudice to the accused. In the case, it is clear that in the recovery memo (Ex.P-1) there was nothing about compliance of Section 50 of the N.D.P.S. Act. PW-9 Poonam Chand, then S.H.O. of the Police Station, Girab who was Recovery Officer and the Investigating Officer also in this case, stated nothing about compliance of Section 50 of the N.D.P.S. Act, which is obligatory upon the officer, to make the suspect aware of such right and non-compliance thereof would cause prejudice to the accused-appellant. 35. In Karnail Singh v. State of Haryana, 2009 (8) SCC 539 , Hon'ble Apex Court held that the provisions of Section 42 of the N.D.P.S. Act are mandatory and essence of the provision has been set out in following terms: "35. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the Police Station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per Clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the Police Station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each. case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001." 36. Upon prosecution evidence, it is clear that there is no compliance of Section 42 of the N.D.P.S Act in this case, which vitiates conviction of the accused-appellant. 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 are to 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. 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 are to 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-2 Gajanand Verma, C.O., Barmer and PW-9 Poonam Chand, S.H.O. P.S. Girab proceeded for the search and seizure, they were required to record the reasons for their belief under the proviso to Section 42 of the Act and also required to transmit those reasons to their 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-2 Gajanand VErma and PW-9 Poonam Chand. 37. 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. 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 required, 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 an 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 under 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 order so 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 seal of the officer in-charge of the Police Station (Section 55). 38. In this case, there is no independent witness of Ex.P-1 recovery memo of said opium and Ex.P-3 recovery memo of alleged heroin, although witnesses could have been available and the above points have not been complied with strictly in this case. 39. 38. In this case, there is no independent witness of Ex.P-1 recovery memo of said opium and Ex.P-3 recovery memo of alleged heroin, although witnesses could have been available and the above points have not been complied with strictly in this case. 39. Section 55 of the N.D.P.S. Act is important, containing provisions regarding action to be taken by the officer in-charge of the Police Station in respect of article seized and delivered. This is an important section and will have to be referred to in reference to the evidence on record and as such, I deem it necessary to quote aforesaid section, which runs as follows: "55. 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." 40. It is clear from the provision stipulated by aforesaid Section 55 of the Act that it is compulsory on the part of the officer-in-charge of the Police Station to allow the officer bringing the seized articles to the Police Station to affix his seal. The officer-in-charge of the Police Station is under statutory obligation to allow such officer to take a quantity of the sample, as safeguard against tampering with of the article seized and deposited. The officer-in-charge is also duty bound to affix his own seal. Clear purpose of such provision vide Section 55 of the Act is to ensure that samples of the case property are not tampered with at any stage. 41. 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. 41. The provisions of Section 55 of the N.D.P.S. Act cannot be treated as 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 . 42. From the perusal of the prosecution evidence, it is clear that all are Police Officials and there are contradictions on various points in their statements. By Ex.P-1 and Ex.P-3 memos of recovery of opium and heroin, it is admitted fact that the Recovery Officer was PW-2 Gajanand Verma, C.O., Barmer and he did not affix his own seal on the samples and the seized articles. PW-3 Rajendra Singh deposed that the seal affixed was impression of tom' ring of PW-9 Poonam Chand. PW-4 Kalu Khan deposed that seal was P.S. Girab, PW-5 Jethu Singh states that the seal was of P.C.B. PW-6 Hamja Khan states that the seal was in English "police thana girab" and again states that P.S. GRB was written on the seal. PW-7 Rawat Singh deposed that the seal, which was affixed, was of Poonam Chand (PW-9) and it remains in his possession. 43. So, by prosecution evidence, it is clear that the Recovery Officer has not affixed his own seal on samples and seized articles. The seal used was not handed over to motbirs or malkhana and seal remained in possession of Police Officials. Hence, compliance of Section 55 of the N.D.P.S. Act has also not been made in this case. 44. 43. So, by prosecution evidence, it is clear that the Recovery Officer has not affixed his own seal on samples and seized articles. The seal used was not handed over to motbirs or malkhana and seal remained in possession of Police Officials. Hence, compliance of Section 55 of the N.D.P.S. Act has also not been made in this case. 44. Specimen memo of the seal was neither produced nor deposited with the Malkhana and not produced in the Court and was not along with samples sent to the F.S.L. Therefore, there was no seal impression to compare with regarding intactness of the samples from the date of seizure till it is received by the F.S.L. Hence, it can not be proved that the seals found on the samples were intact as were put thereon immediately after seizure of the contraband articles. The prosecution failed to prove that the samples were kept sealed and the seal remained intact from the date of seizure till date the samples were deposited with the F.S.L. 45. It is admitted position that Recovery Officer was PW-2 Gajanand Verma, C.O., Barmer and at the time of recovery of opium and heroin, PW-9 Poonam Chand, S.H.O., Police Station, Girab was also with him and witnesses of the memos were also working under the C.O. Barmer as Police Officials. PW-9 Poonam Chand himself started investigation and after completing the investigation, filed charge-sheet against the accused-appellant. Exhibit-Dl-situation report during search of opium and heroin was prepared by Gajanand Verma (PW-2) on 19.11.1988 at 3.30 P.M. and signed by Poonam Chand (PW-9), S.H.O. P.S. Girab and Veer Singh (PW-1). PW-9 Poonam Chand himself started investigation and after completing the investigation, filed charge-sheet against the accused-appellant. Exhibit-Dl-situation report during search of opium and heroin was prepared by Gajanand Verma (PW-2) on 19.11.1988 at 3.30 P.M. and signed by Poonam Chand (PW-9), S.H.O. P.S. Girab and Veer Singh (PW-1). In above document (Ex.D-1), following fact was mentioned: " QnZ pSfdax o gkykr cjkenxh 900 xzke gsjksbu 100 xzke vQhe cdCtk vkseu iq= Jh lQh eksgEen tkrh eqlyeku fuoklh frjlhx<+h mez 25 lky ih0,l0 ckM+esj lnj lEcaf/kr vijk/k 52@88 la[;k 19-11-1988 /kkjk 17] 18] 21 ,u0Mh0ih0,l0 ,DV ih0,l0 fxjkc eqfrZc 19-11-1988 oDr 3-30 ,0,e0 ckn fxjQrkjh eqy0 ls iwNrkN dh xbZ fd mlds ikl vU; izdkj ds eknd inkFkZ lkexzh fdruh rks igys rks euk djrk jgk fQj mlus crk;k fd ,d FkSyh otuh 900 xzke gsjksbu dh mlds xzke frjlhxM+h ds ikl/kksjs esa ,d dsj dh tM+ ds ikl xk<+h gqbZ gSA bl lwpuk ij QnZ bRryk 27 b0oh0 ,DV tqnxuk eqfrZc dh tkdj lkehy i=kfn dh xbZ vkSj eqrkfcd bryk gsjksbu 900 xzke Hkh cjken dh xbZ ftlds fy;s QnZ cjkenxh tqnkxuk eqfrZc dh tkdj lkehy i=kfn dh xbZA " 46. As per statement of prosecution witnesses and Ex.P-3 recovery memo of heroin, it was prepared on 19.11.1988 at 6.30 A.M. Thus, in above facts and circumstances, investigation cannot be said to be fair and reasonable and as such, creates doubt in the prosecution story of recovery of contraband articles. 47. 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 seizure/arrest under this Act, he shall, within 48 hours after such seizure or arrest, make a full report of all the particulars of such arrest of seizure to the immediate superior officer but, there is no compliance of this provision of the N.D.P.S. Act in the present case. Any proof thereof that the information requisite under Section 57 of the Act was actually sent to higher Police Officer is required to be placed before the Court, which has not been done in the present case, as per evidence of the prosecution. Any proof thereof that the information requisite under Section 57 of the Act was actually sent to higher Police Officer is required to be placed before the Court, which has not been done in the present case, as per evidence of the prosecution. It is correct that compliance of this section is not mandatory in view of decision rendered by Hon'ble Apex Court in the case of Gurbux Singh (supra), wherein Hon'ble Apex Court observed that-it is true that provisions of Sections 52 and 57 of the Act are directory and violation of these provisions would not, ipso facto, vitiate the trial or conviction; however, the Investigating Officer cannot totally ignore these provisions and such failure will have bearing on appreciation of evidence regarding arrest of the accused or alleged seizure and the case becomes doubtful. 48. There are two informations-Ex.P-4-given to PW-2 Gajanand Verma, C.O., Barmer and Ex.D-4 given to PW-9 Poonam Chand, S.H.O., Police Station, Girab; which also creates doubt in prosecution story of recovery of heroin. PW-9 Poonam Chand investigating the matter out of jurisdiction because said heroin was recovered from village Tirsingadi, which falls in jurisdiction of Police Station, Barmer Sadar. The prosecution evidence has material contradictions and information about search and seizure of said contrabands-opium and heroin from possession of the accused-appellant is wholly unreliable. 49. Therefore, in my considered opinion, the learned trial Court has not properly appreciated the prosecution and defence evidence on the record 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 on the record of the case. The investigation has not been conducted properly. No attempt was made for procuring attendance of independent witnesses at the time of both recoveries and for other memos. There is no link evidence to prove the fact that samples were kept sealed and the seals remained intact till deposit with the F.S.L. The provisions of the N.D.P.S. Act have not been complied with in this case by the Recovery Officer and the Investigating Officer. The possession of said contrabands is not proved beyond reasonable doubt. There are serious contradictions in the prosecution evidence. The memo Ex.D-1 creates doubt upon entire prosecution case and seems to be concocted. The possession of said contrabands is not proved beyond reasonable doubt. There are serious contradictions in the prosecution evidence. The memo Ex.D-1 creates doubt upon entire prosecution case and seems to be concocted. Hence, the conviction of the accused-appellant recorded by the trial Court, in the above discussed circumstances, deserves to be set aside and the accused-appellant deserves to be acquitted by extending benefit of doubt. 50. In view of the above, present appeal of accused-appellant is allowed. The judgment of conviction of order of sentence dated 16.5.1989 passed by learned Additional Sessions Judge, Barmer in Sessions Case No. 13/1989 is hereby quashed and set aside and the accused-appellant Oman S/o Safi Mohd, R/o Tirsingadi, Tehsil and District-Barmer is hereby acquitted of the charge under Sections 18 and 21 of the N.D.P.S. Act. The appellant Oman is on bail. His bail bor"stand discharged. *******