JUDGMENT Radhe Shyam Sharma, J. [1] This appeal is directed against the judgment dated 13.12.1995 passed by 3rd Additional Special Judge, Bastar at Jagdalpur in Special Case No.33/1995. By the impugned judgment, accused/appellant Krishnapal Singh has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the Act, 1985') and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.5,000, in default, to further undergo imprisonment for six months. [2] Case of the prosecution, in brief, is as under: On 13.6.1995, at about 9 p.m., Station House Officer N. Kujur (PW3), alongwith Assistant Sub-Inspector Vijaynath Singh (PW2) and other staff, was on patrolling duty towards Bhejipadar. Assistant Sub-Inspector Vijaynath Singh (PW2) reached Bodnapara River of Nagarnar for checking and Station House Officer N. Kujur (PW3) reached Bhejipadar Border for checking. On the date of incident, i.e., 14.6.1995, at about 1.30 o'clock in the night, two persons came from Orissa. On being enquired about their identity, they told their names Jairam and Krishnapal Singh (the appellant). Vijaynath Singh (PW2) gave notice (Ex.P3) to the appellant and written search certificate (Ex.P2) V\e seized a bag from the appellant in which about 5 kilograms of green seeds and Ganja particles were kept. He made seizure of the above articles vide Ex. P4 before witnesses. Thereafter, he came to Police Station Nagarnar and got the seized Ganja weighed from Vidyadhar (PW1) before witnesses at the police station and prepared Weighing Panchnama (Ex.Pl) and thereafter registered First Information Report (Ex.P6) and registered Crime No.95/95. He handed over the seized Ganja to Head Constable Malkhana Moharrir on Supurdnama (Ex.P7). He informed his superiors about the whole action by radio messages. He arrested the appellant and prepared Arrest Memo (Ex.P5). The Investigating Officer N. Kujur (PW3) prepared spot-map (Ex.P8) and recorded statements of witnesses. Seized Ganja was sent for examination to Forensic Science Laboratory, Raipur through Superintendent of Police, Jagdalpur. The Forensic Science Laboratory, in its report (Ex.P9), reported that the article sent for examination was found to be Ganja. After completion of the investigation, charge-sheet was filed against the appellant in the Court of Special Judge (Sessions Judge), Bastar at Jagdalpur, from where it was received on transfer by the 3rd Additional Special Judge, Bastar at Jagdalpur, who conducted the trial and convicted and sentenced the appellant as mentioned above. After completion of the investigation, charge-sheet was filed against the appellant in the Court of Special Judge (Sessions Judge), Bastar at Jagdalpur, from where it was received on transfer by the 3rd Additional Special Judge, Bastar at Jagdalpur, who conducted the trial and convicted and sentenced the appellant as mentioned above. [3] Shri Shailendra Dubey, learned counsel for the appellant argued that there was no compliance of Sections 42, 50, 52 and 55 of the Act, 1985. He further argued that there is nothing on record to show that the bag was containing Ganja and samples taken from the bag were sealed and specimen impression of the seal was prepared. The samples were not taken and the whole bag was sent to FSL, Raipur on 20.6.1995 and the same was received at the FSL, Raipur on 28.6.1995. It was sent after considerable delay, for which there is no explanation. Therefore, the seizure from the appellant was not in accordance with law. Possibility of tampering of the seal of the bag sent to the FSL cannot be ruled out. Therefore, the appellant is entitled to be acquitted of the charge framed against him. [4] Shri M.P.S. Bhatia, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment submitted that the conviction and sentence awarded by the learned Additional Special Judge do not warrant any interference by this Court. [5] Having heard the rival contentions of the parties, I have perused the record of Special Case No.33/1995. The prosecution examined Vidyadhar (PW1), who weighed the said Ganja, Anantram (PW4), who is a seizure witness, Vijaynath Singh, Assistant Sub-Inspector (PW2), who made search and seizure of the said Ganja from the appellant. [6] Now, I shall examine whether Section 42 of the Act, 1985 has been substantially complied by Assistant Sub-Inspector Vijaynath Singh (PW2). Vijaynath Singh (PW2) deposed that on 14.6.1995, he had gone on patrolling duty alongwith the Station House Officer and other staff of the police station. After coming out of the police station, they had divided themselves into two parties. One party accompanied him and the other party accompanied the Station House Officer. At the time of incident, the Station House Officer, alongwith his party, was sitting beside Indravati River. He was sitting alongwith his party at other place. At the time of incident, suddenly, two persons crossed the river. The Station House Officer told loudly to catch them. One party accompanied him and the other party accompanied the Station House Officer. At the time of incident, the Station House Officer, alongwith his party, was sitting beside Indravati River. He was sitting alongwith his party at other place. At the time of incident, suddenly, two persons crossed the river. The Station House Officer told loudly to catch them. He, along with his party, caught both the persons. [7] In Karnail Singh v. State of Haryana, 2009 8 SCC 539 the Hon'ble Supreme Court held thus: "35. In conclusion, what is to be noticed is that Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 2 SCC 513 , did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham v. State of Kerala, 2001 6 SCC 692 , hold that, the requirements of Sections 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 register concerned 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 information 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. (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 with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with 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 of 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." [8] I have gone through the evidence of Vijaynath Singh (PW2). He did not utter a single word about the secret information received by him or received by N. Kujur (PW3) in writing and had not sent any such information to the higher authorities even N. Kujur (PW3) did not utter single word about any written information. It is, therefore, clear that there has been complete non-compliance with the provision of Section 42(2) of the Act, 1985. It is, therefore, clear that there has been complete non-compliance with the provision of Section 42(2) of the Act, 1985. In view of the law laid down in Karnail Singh v. State of Haryana, total non-compliance of the provision of Section 42(2) of the Act, 1985 vitiates the conviction. (See also Rajender Singh v. State of Haryana., 2011 8 JT 577. [9] Now, I shall examine whether Section 50 of the Act, 1985 has been substantially complied by the Investigating Officer or not. Under Section 50(1) of the Act, 1985, the officer who is to search the accused, is required to inform the person about his right to be search by a Gazetted Officer or by a Magistrate. If the person opts to the search before a Gazetted Officer or a Magistrate, he shall immediately be taken to the said officer or Magistrate. Otherwise, the search can be made by the concerned officer. The requirement of law has been held to be mandatory in nature and non-compliance thereof vitiates the trial. [10] Vijaynath Singh (PW2) deposed that before making search, he had given a notice to the appellant before witnesses for his search by him or by a Gazetted Officer. The appellant consented to his search by him. Notice of search is Ex.P2 which bears his signatures and signatures of the appellant. Notice of papers is Ex.P3 which also bears his signatures and the signatures of the appellant. On making search of the appellant after giving him notice before witnesses, Ganja was found in his possession, which was seized before witnesses. [11] Ex.P2 is the consent memo under which the appellant opted to be searched in presence of a Gazetted Officer. In Ex.P2, it is mentioned that information was received that the appellant was having illegal Ganja in a plastic bag in his possession. It is further mentioned therein that the appellant was asked by Vijaynath Singh (PW2) about his search by himself (Vijaynath Singh (PW2) or by a Gazetted Officer. The appellant gave his written consent vide Ex.P2. Thereafter; Vijaynath Singh (PW2) searched the bag of the appellant. [12] In Nirmal Singh Pehlwan @ Nimma v. Inspector, Customs, Customs House, Punjab, 2011 8 JT 581. the Hon'ble Supreme Court observed thus: "7. We have examined the facts of the case in the light of the arguments raised by the learned counsel for the parties and the case law cited. [12] In Nirmal Singh Pehlwan @ Nimma v. Inspector, Customs, Customs House, Punjab, 2011 8 JT 581. the Hon'ble Supreme Court observed thus: "7. We have examined the facts of the case in the light of the arguments raised by the learned counsel for the parties and the case law cited. Ex. P.A. is the consent memo under which the appellant had opted to be searched in the presence of a Gazetted Officer. This memo is in the Gurmukhi script and has been read to us and we see that it cannot by any stretch of imagination be said to be informing the appellant of his right to be searched in the presence of a Gazetted Officer or a Magistrate as he was only given the option to be searched before one of the other. In Vijaisingh's case the Constitution Bench crystallized the issue before it in para 1 as under: "The short question arising for consideration in this batch of appeals is whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") casts a duty on the empowered officer to "inform" the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said section?" 9. It is therefore apparent that the precise question that was before the Constitution Bench was as to whether a consent memo could be said to be information conveyed to an accused as to his right under Section 50 of the Act. The Constitution Bench clearly stated that a consent memo could not be said to be such information as the provisions of Section 50 of the Act were mandatory and strict compliance was called for and any deviation there from would vitiate the prosecution. It was further held that it was not necessary that this information should be in a written form but the information had to be conveyed in some form or manner which would depend on the facts of the case. We have accordingly gone through the evidence of PW4 Prem Singh. It was further held that it was not necessary that this information should be in a written form but the information had to be conveyed in some form or manner which would depend on the facts of the case. We have accordingly gone through the evidence of PW4 Prem Singh. He did not utter a single word as to whether he had informed the appellant of his right and he merely took his option as to whether he would like to be searched before a Gazetted Officer or a Magistrate as noted in Ex. P.A. In the light of the judgment in Vijaisingh's case we find that there has been complete non-compliance with the provisions of Section 50 of the Act." [13] I have gone through the evidence of Vijaynath Singh (PW2). He did not speak a single word as to whether he had informed the appellant of his rights. He merely took his option as to whether he would like to be searched before a Gazetted Officer. In Ex.P2, it is not mentioned that the appellant was informed about his right to be searched by a Gazetted Officer or by a Magistrate. Mere mentioning that would the appellant like to be searched by a Gazetted Officer is not sufficient compliance of the provisions of Section 50 of the Act, 1985. In the light of judgment in Karnail Singh, I find that there has been complete non-compliance of the provisions of Section 50 of the Act, 1985. [14] In the instant case, it is appeared that contraband article of 5 kilograms was recovered from the bag, which was being carried by the appellant. In such circumstances. Section 50 of the Act, 1985 would not be applicable in the instant case. The aforesaid section can be invoked only in case where the contraband drug or article is recovered as a consequence of the body search of the accused- Since the recovery of the Ganja is made from a bag being carried by the appellant, the provision of Section 50 of the Act, 1985 would not be attracted in the instant case. [15] Shri Shailendra Dubey, learned counsel for the appellant submitted that sample was not taken by Assistant Sub-Inspector Vijaynath Singh (PW2). [15] Shri Shailendra Dubey, learned counsel for the appellant submitted that sample was not taken by Assistant Sub-Inspector Vijaynath Singh (PW2). According to the prosecution, seizure was made on 14.6.1995 and the bag was received for chemical examination in the FSL on 28.6.1995, i.e., near about after 15 days of the seizure. Malkhana Register was not produced by the prosecution. The Constable, who was entrusted with the bag was not examined and the delay in submitting the bag in the FSL is not explained. [16] On the other hand, Shri M.P.S.Bhatia, learned Deputy Government Advocate for the State/respondent argued that the bag was sealed properly and the evidence led by the prosecution would not show any possibility of tampering of seal affixed on the bag sent to the FSL. [17] I have perused the evidence led by the prosecution. Vijaynath Singh (PW2) deposed that the appellant was brought to the police station and the seized Ganja was got weighed before Vidyadhar (PW1). Weighing Panchnama (Ex.Pl) was prepared which bears his signatures. He had arrested the appellant before witnesses. Arrest Memo is Ex.P5, which bears his signatures. He had registered First Information Report (Ex.P6), which bears his signatures. He further deposed that the seized article was handed over to Head Constable Malkhana Moharrir for safe custody vide Ex.P7. [18] Ex.P4 is the seizure memo. The date and time of seizure isl4.6.1995 at 1.30 a.m. In Ex.P4, the weight of Ganja is mentioned as 5 Kilograms. Vidyadhar (PW1) deposed that the police officials had brought Ganja in his shop situated at Nagarnar. That Ganja was kept in a plastic bag. On weighing, the Ganja was found to be of 5 Kilograms. Weighing Panchnama was prepared vide Ex.Pl, which bears his signatures. In cross-examination, he deposed that the Ganja was brought to him by two Constables. His weighing articles were not examined. The Ganja was weighed in the Tarajoo (weighing article) of 50 Kilograms. The Ganja was in a bag. He had weighed the closed bag. Weighing Panchnama was prepared vide Ex.Pl, which bears his signatures. In cross-examination, he deposed that the Ganja was brought to him by two Constables. His weighing articles were not examined. The Ganja was weighed in the Tarajoo (weighing article) of 50 Kilograms. The Ganja was in a bag. He had weighed the closed bag. He further deposed that the bag, which he had weighed, was brought to him at about 9-10 a.m. [19] After perusal of the evidence of Vidyadhar (PW1), it appears that the Ganja was seized on 14.6.1995 at about 1.30 a.m. and was weighed on the same day, i.e., 14.6.1995, at about 9-10 a.m. If the Ganja was not weighed at the time of its seizure, then mentioning of its weight at the time of its seizure in the seizure memo (Ex.P4) renders the case of the prosecution doubtful. [20] In the seizure memo (Ex.P4), it is not mentioned that the seized article was sealed on the spot. This document does not bear specimen impression of the seal also. [21] Sub-Inspector N. Kujur (PW3) deposed that he had sent the seized Ganja to Forensic Science Laboratory, Raipur through Superintendent of Police, Jagdalpur for examination. He had sent the seized Ganja for examination in the whole bag. The report received from the Forensic Science Laboratory is Ex.P9. [22] I have perused the evidence led by the prosecution. Sub-inspector N.Kujur (PW3) deposed that he sent the Ganja for chemical examination to Forensic Science Laboratory, Raipur and report of the FSL is Ex.P9. In the report (Ex.P9), presence of Ganja was found to be positive. [23] I have perused the evidence led by the prosecution. Sub- Inspector N. Kujur (PW3) deposed that he sent the Ganja for chemical examination to Forensic Science Laboratory, Raipur and the report of FSL (Ex.P9) was received. In the report (Ex.P9), presence of Ganja was found to be positive. In a prosecution for the evidence under Section 20 of the Act, 1985, it is the duty of the prosecution to establish beyond of doubt that sample taken from the quantity of Ganja alleged to have been seized from the appellant were sealed and specimen impression of the seal was prepared. In a prosecution for the evidence under Section 20 of the Act, 1985, it is the duty of the prosecution to establish beyond of doubt that sample taken from the quantity of Ganja alleged to have been seized from the appellant were sealed and specimen impression of the seal was prepared. It was also necessary for the prosecution to establish that at the time of entrustment of the sample in the Malkhana, Station House Officer of the Police Station had affixed his seal in the sample packets as also on the remaining quantity of Ganja. The prosecution must establish beyond reasonable doubt that the seal affixed on the sample packets not only at the time of seizure but also at the time of entrustment in the Malkhana are remain intact till the sample packet was delivered at FSL for its chemical analysis. [24] In State of Rajasthan v. Bher Singh,2009 6 SCC 293. the Hon'ble Supreme Court, regarding failure by prosecution to prove that the seal on seized opium sample had remained intact till its examination in FSL, held that this being a mandatory requirement, no interference with High Court's order reversing the conviction is called for. [25] In the instant case, the prosecution did not examine the officer-in-charge of Malkhana. It also did not produce the Malkhana Register in its evidence. Even Vijaynath Singh (PW2) did not state anything about safe custody of the seized contraband article. In the FSL Report (Ex. P9), it is mentioned that packet (Bori) was received from Constable 401 Khemraj Sahu on 28.6.1995. In the report (Ex.P9), specimen impression of the seal is not mentioned. It was also not mentioned in the report (Ex.P9) that the packet (Bori) was received alongwith specimen impression of the seal of the officer-in-charge of the police station. Even memorandum of the Superintendent of Police was not produced in the evidence. Constable 401 Khemraj Sahu was not examined by the prosecution. The contraband article was seized on 14.6.1995 and the packet (Bon) was received by the FSL on 28.6.1995. There is no evidence to explain the custody of the packet (Bori) during this period and the delay in submitting the same in the FSL. [26] After having considered the evidence led by the prosecution in its entirety, I am of the considered opinion that there is non-compliance of Sections 52 and 55 of the Act, 1985. There is no evidence to explain the custody of the packet (Bori) during this period and the delay in submitting the same in the FSL. [26] After having considered the evidence led by the prosecution in its entirety, I am of the considered opinion that there is non-compliance of Sections 52 and 55 of the Act, 1985. Neither delay in delivering the bag at FSL has been explained nor the Malkhana Register was produced in evidence. The prosecution did not establish that the seized Ganja was kept in safe custody in Malkhana. The prosecution did not examine the officer-in-charge of Malkhana, Station House Officer and Constable 401 Khemraj Sahu. Therefore, the report of FSL (Ex.P9) cannot form the basis of conviction of the appellant under Section 20 of the Act, 1985. In view of the above, the impugned judgment deserves to be set aside. [27] In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are set aside. The appellant is acquitted of the charge framed against him, after giving him benefit of doubt. His bail bonds are cancelled and sureties stand discharged. Appeal allowed.