J.P. Singh, J.— 1. Tried on a Charge under Sections 18/20/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for being in possession of 1 kilogram of solid opium and 1.050 kg of liquid opium, the respondents-Rajesh Kumar and Sushil Kumar, after their full fledged trial, were acquitted by the learned Special Judge (Sessions Judge), Kathua vide his judgment and order dated 05.04.2012. 2. Dissatisfied with the acquittal, the State has preferred Appeal there against along with Motion seeking condonation of 105 days' delay in filing the Appeal. 3. Heard learned counsel for the parties on Motion seeking condonation of delay. 4. The judgment of the learned Special Judge is stated by the State to have been examined at various levels whereafter the State Government granted sanction for -filing acquittal Appeal vide Government Order No. 2609-LD(ACQ) of 2012 dated 01.08.2012. The Appeal was accordingly drafted and sent for signatures to Station House Officer, Police Station Hiranagar, who took some time in delivering the signed papers back to the appellant's learned counsel. The Appeal was thereafter filed on 17.10.2012. 5. Perusal of the Application reveals that despite State Government's sanction on August 01, 2012, the Appeal was not filed for more than two and half months and the only reason that may be discerned from the Application is that the Station House Officer concerned had taken some time to deliver the signed papers back to the learned Advocate engaged by the State for filing Appeal. 6. We do net find the cause projected by the State in seeking condonation of delay sufficient, in that, the concerned functionaries of the State Government whose duty it was to file Appeal within the prescribed time, do not appear to have taken requisite steps to do the needful. This apart, barring bald statement made in the Application, that the Station House Officer being law enforcing agency had taken some time to deliver the signed papers back to the appellant's counsel, the appellant has not projected any other acceptable reason(s) which had disabled the Station House Officer not to deliver back the Memo of Appeal to the appellant's Advocate for more than two months. 7. In short, the appellant's Motion is not in any way different from the stereotype Applications that the State has been filing in this Court in all those cases where the delay had occasioned in filing the Appeals. 8. 7. In short, the appellant's Motion is not in any way different from the stereotype Applications that the State has been filing in this Court in all those cases where the delay had occasioned in filing the Appeals. 8. The appellant's Motion-may not, therefore, deserve allowance as such on Us own merit, in that, we do not consider the cause projected in the Application sufficient to condone delay. 9. We, however, thought it appropriate to examine the judgment of the learned Special Jud ge to find as to whether or not any interference was warranted therewith, so that injustice may not occasion merely because of State's lapse in filing of Appeal within the prescribed period of limitation. 10. Perusal of the judgment delivered by the learned Special Judge reveals that the investigating agency which had specific information about respondents' allegedly carrying contraband, had not followed the mandatory provisions of Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and this apart, the evidence produced by the prosecution would not prove the respondents to have been found in possession of the contraband, which is stated recovered from the Scooter parked on one side of the road when the respondents were stated standing on the other side. 11. In dealing with the above two issues, the learned Special Judge has observed as follows:- "Section 42 of the Act provides that when any officer duly authorized has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under the Act has been committed, is kept or concealed in any building he may enter into and search any such building and seize such drug or substance and arrest any person whom he has reason to believe to have committed any offence punishable under the Act. The officer is further under an obligation to sent a copy thereof to his immediate superior officer within 72 hours. Section 50 of the Act further ordains that whenever a person is required to be searched U/s 41,42 or 43 he shall if he so requires be taken before a nearest Gazetted officer or to the nearest Magistrate. The accused has to be asked whether he wants to be searched in presence of a Gazetted officer or a Magistrate. Section 50 of the Act further ordains that whenever a person is required to be searched U/s 41,42 or 43 he shall if he so requires be taken before a nearest Gazetted officer or to the nearest Magistrate. The accused has to be asked whether he wants to be searched in presence of a Gazetted officer or a Magistrate. The provisions of section 41, 42, 43 and 50 are mandatory in nature and non compliance of these provisions would adversely affect the prosecution case and vitiate the trial. There is nothing on record to suggest that after the arrest of the accused by the police party, the information regarding the occurrence was sent to the superior officers within 72 hours of the occurrence. No documentary proof has been placed on record nor any oral evidence lead by the prosecution to suggest that the arresting officer has communicated the proceedings to the superior authority within the statutory period. It is the prosecution case that the contraband was allegedly recovered from the possession of the accused but there is nothing on record to suggest that the police obtained option from the accused regarding search of his person to be conducted in presence of a magistrate or a Gazetted officer. Pw Mohd. Ali constable has categorically admitted that the option of the accused was not sought before putting them to personal search. Therefore, there has been a total non compliance of provisions of Sections 41, 42, 43 and 50 of the NDPS Act. There are four cited marginal witnesses to the seizure memo of the contraband and out of them only two witnesses namely Roshan Singh and Jarmej Singh have been examined by the prosecution. PW Roshan Singh is the driver of official vehicle of SHO Hiranagar whereas Jarmej Singh constable was posted as PSO with the SDPO Chadwal. Roshan Singh has totally contradicted with the prosecution story by stating that during the patrolling two Motorcycles were found parked on the road side and SHO had recovered one bag from each motorcycle allegedly containing the contraband. According to Jarmej Singh when he reached on spot he found both the accused sitting on a scooter. According to him except recovery of contraband on spot no other proceedings were conducted. PW Mohd. According to Jarmej Singh when he reached on spot he found both the accused sitting on a scooter. According to him except recovery of contraband on spot no other proceedings were conducted. PW Mohd. Ali, has introduced a totally different story by stating that he found Karamat Hussain talking with the accused person on telephone in code words regarding the heroin and charas. According to him the search of the scooter was conducted by SDPO. While contradicting the statement of PW Bodh Raj and Jarmej Singh. PW Jasbir Singh has stated that the searched of the scooter was conducted by him. All the Pws alleged to be the witnesses to the recovery and seizure of the contraband on spot have given contradictory and divergent version which casts serious doubt regarding the credibility of the prosecution case. It is the prosecution case that accused were found by the police patrolling party with their scooters parked in an under construction Dhaba belonging to accused Rajesh Kumar. But the Scribe of the story namely Jasbir Singh has given a totally contradictory version while stating that the scooter and the motorcycle were found parked by him on the other side of the road. A Number of civilian were available at the time of effecting recovery on spot but none, of them has been cited as witnesses to the seizure memo which further affirms that the prosecution has deliberately not cited and examined the available independent witnesses. Had any independent witness been examined in support of the prosecution case. He would not have supported the prosecution case. It is the prosecution case that on receiving information from reliable sources regarding dealing of the accused in the illegal trade of selling of opium by them. SHO Hiranagar registered the FIR and proceeded for the spot. Sh. Jasbir Singh SHO allegedly accompanying the police patrolling party, made the recoveries, recorded the statements of the witnesses apprehended the accused, conducted the whole of the investigation of the case and presented the challan in the court against the accused persons. It is the well settled law that the officer making the recoveries should not investigate the matter. In such cases investigation should be made by an independent officer preferably by an superior officer than the officer making the recoveries in the case. It is the well settled law that the officer making the recoveries should not investigate the matter. In such cases investigation should be made by an independent officer preferably by an superior officer than the officer making the recoveries in the case. The recoveries have been made in the instant case by PW Jasbir Singh, the FIR has also been lodged by him and the investigation has been conducted by him. This is the basic infirmity with which the investigation of the case suffers." 12. We find the learned Sessions Judge to have taken correct view in acquitting the respondents and no interference with the judgment may, therefore, be warranted. 13. The State having thus failed to make out any case justifying condonation of delay, Motion moved by it is accordingly rejected dismissing Cr. Acq. Appeal No. 71/2012 as barred by time.