A. C. Upadhyay, J. By filing this appeal the petitioner has challenged the Judgment and Order dated 18.03.2010 passed by the learned Sessions Judge, Kamrup, Guwahati in Session's (Spl.) Case No. 384(K)/2007, whereby the accused-appellant was convicted under Section 20(b)(ii) (C) of NDPS Act and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 Lakh, and in default, to undergo further rigorous imprisonment for one year. 2. Brief facts, leading to filing this appeal, may be, stated in brief, as follows: On 7.9.2007 at about 7-25 AM, while some GRP personnel making a search in the Army Coach No. 98401 of the DN 5960 Kamrup Express, they unearthed 221 kilograms contraband 'Ganja' from four steel boxes belonging to the accused-appellant and seized the same in presence of witnesses. The accused-appellant was arrested and later forwarded to a Court and sample of the 'Ganja' had been sent for chemical examination to the Forensic Science Laboratory. After receipt of the FSL report, the Investigating Officer had submitted a charge-sheet against the accused-appellant under Section 20(b) of NDPS Act. 3. On receipt of the charge-sheet, Session's (Spl.) Case No.384(K)/ 2007 was registered and trial of the case ensued in the court of the learned Sessions Judge, Kamrup. The learned Sessions Judge, Kamrup, framed a formal charge u/s 20(b)(11)(C) of the N.D.P.S. Act. 4. During trial of the case, as many as 8 witnesses were examined by prosecution, including I/O and the FSL expert. After hearing the parties and considering materials on record, the learned Sessions Judged found the accused-appellant guilty of the offence under Section 20(b)(ii)(C) of the NDPS Act and accordingly sentenced him as aforesaid, giving rise to the appeal before this Court. 5. The cardinal point to be decided first is, whether the articles seized were the cannabis. It appears from the evidence on record of PW7 that in course of frisking, 4 trunks were found huddling with suspected 'Ganja'. He carried the trunks to the railway cloak-room and weighed the same: 221 kilograms ganja was found huddled inside the trunks. He seized the ganja in the presence of the accused and other witnesses by the seizure list (ext. 1) in reference to G.D. entry no. 231 dated 7.9.2007 along with the trunks. Exhibit 4 is the certified copy of the relevant G.D. entry. He seized the ganja in the presence of the accused and other witnesses by the seizure list (ext. 1) in reference to G.D. entry no. 231 dated 7.9.2007 along with the trunks. Exhibit 4 is the certified copy of the relevant G.D. entry. It is also the evidence of the complainant that he took sample from the seized suspected ganja, in presence of the witnesses and sent the same to the F.S.L. for chemical examination and thereafter received a positive report of the sample from the F.S.L. 6. The evidence of the complainant about the seizure of the suspected 'Ganja' and the fact of drawing a sample thereof for sending to F.S.L. for examination has not been challenged by the defence. The evidence of the complainant (PW7), as regard seizure of suspected ganja was supported by PW8, who was present at the time of seizure and the taking of the sample from the seized suspected ganja. It is in the evidence of PW8 that the complainant Romesh Talukdar, in presence of him and others, seized 4 trunks containing about 221 kg of suspected 'Ganja' by the seizure list(exhibit 1) and took a sample from the seized suspected ganja. 7. The evidence of PW8 about the seizure of 4 trunks containing about 221 kg of suspected ganja and the fact of taking out the sample from the seized suspected ganja has not been disputed by the defence. 8. PW3 is the Deputy Director of FSL under whose supervision expert G.N. Deka examined the sample of suspected 'Ganja' in reference to GRP GD entry no. 231 dated 7.9.2007. It is in the evidence of PW3 that on 10.9.2007 he received the sample of dry plant materials about 25 gm vide memo no. GHTY/GRPS/07/GDE-6/231 dated 8.9.2007 and on analysis the sample under his supervision by analyst GN Deka found that the sample gave positive test for cannabis(ganja). Ext.2 is the FSL report. Considering the evidence on record of PW3, PW7m PW8 and the document marked as ext. 2, it can safely be concluded that the seized materials are cannabis. 9. Now the point to be decided is, whether the accused Hari Thakuri had illegally possessed the cannabis in contravention of the provision of NDPS Act in carrying a total quantity of 221 kg 'Ganja' in 4 trunks, and whether the articles had been recovered from his possession. 2, it can safely be concluded that the seized materials are cannabis. 9. Now the point to be decided is, whether the accused Hari Thakuri had illegally possessed the cannabis in contravention of the provision of NDPS Act in carrying a total quantity of 221 kg 'Ganja' in 4 trunks, and whether the articles had been recovered from his possession. PW1 and 2 are railway mazdoors having carried the boxes from the platform 1 to the GRPS on being approached by the GRP personnel. As the boxes were not opened in their presence, they were not aware of the articles inside the boxes. 10. PW4, a GRP constable, who was on duty on 7.9.2007 at Guwahati railway station along with Havildar Faijur Rahman(PW6) and Panatosh Nandi(PW8). Their evidence is that on 7.9.2007 while they were making a recce of the compartments of DN Kamrup Express they found a fleet of 4 trunks under a seat with the accused sitting over it and on being asked the accused disclosed that he was the custodian of the boxes. Thereafter, the accused tried to flee. On being reported the matter, their superiors came there and weighed the trunks, and found M.Ext. 1, 2 ,3 and 4, that is, trunks. The trunks were opened in presence of witnesses and found containing suspected ganja. It is disclosed from the evidence of PW4 that co-passengers stated that the trunks did not belong to any one of them. 11. PW5 is a Homegaurd who was discharging his duty on 7.9.2007 at platform 1 of Guwahati railway station and his evidence is that on that day SI Ramehs Talukdar, along with his staff, recovered 4 trunks from DN Kamrup Express and carried the trunks to GRPS along with the person. At the GRPS the trunks were opened and found ganja inside. The ganja was weighed at the cloak-room and found 221 kg, and the same was vide seizure list(exhibit 1) in his presence. 12. PW6, a head constable, was on duty at platform 1 on 7.9.2007 of Guwahati railway station along with other police personnel. His evidence is that on that day at around 7.30 AM, DN Kamrup Express arrived at platform 1. During the course of searching compartments, in a military compartment they found one man was sitting on a black-coloured steel trunk with other 3 trunks inside the compartment. His evidence is that on that day at around 7.30 AM, DN Kamrup Express arrived at platform 1. During the course of searching compartments, in a military compartment they found one man was sitting on a black-coloured steel trunk with other 3 trunks inside the compartment. When they asked the person to open the trunks the stranger disclosed that he is not the owner of the trunks but he would be able to call up their owner. The person left the compartment in a suspicious manner, and hence he was taken back and asked to open the trunks, whereupon the person opened one trunk with the keys in his hand and inside the trunks they found some packets wrapping up with polythene to be of suspected ganja. The person, along with the trunks containing suspected ganja, was taken to the GRPS. It is stated by PW6 that the accused present in the dock was the person who was found and apprehended with the steel boxes. The evidence of PW6 about the fact of apprehension of the accused while sitting on the trunk containing the ganja and the fact of opening the lock attached to the trunk by the accused with the keys in his hand has not been challenged by the defence while cross-examining PW6. 13. PW7 is the complainant. His categorical evidence is that on 7.9.2007, the officer-in-charge of GRPS, on getting information regarding carrying of some suspected ganja in an army coach of 5960 DN Kamrup Express coming from Dibrugarh, made GD entry 231 dated 7.9.2007 and later directed PW7 to take steps in this regard. Exhibit 4 is the certified copy of the relevant GD entry. PW8 had collected the authority letter, marked as Ext. 5 from the Inspector of Railway Police and proceeded to platform 1 of Guwahati railway station along with his staff. In the army coach of 5960 DN Kamrup Express, PW7 found one person along with 4 steel trunks. After opening the trunks they found suspected ganja inside the trunks. The suspected ganjas were weighed in the cloak-room and found 221 kg. Thereafter he seized the trunks along with the suspected ganja by the seizure list(exhibit 1) from the possession of the accused Hari Thakuri. He took a sample from the suspected ganja in presence of the witnesses and sent the contraband to the F.S.L. for examination. The suspected ganjas were weighed in the cloak-room and found 221 kg. Thereafter he seized the trunks along with the suspected ganja by the seizure list(exhibit 1) from the possession of the accused Hari Thakuri. He took a sample from the suspected ganja in presence of the witnesses and sent the contraband to the F.S.L. for examination. The accused was arrested and forwarded to the court. PW7 also collected the F.S.L. report, wherein it was opined that the sample gave positive test for cannabis and thereafter lodged the ejahar(exhibit 7). Investigation of the case was entrusted upon him by the officer-in-charge of G.R.P.S., therefore, after completing the investigation, PW7 submitted the charge sheet against the accused. Exhibit 8 is the charge-sheet. PW7 proved the M. exhibit 1,2,3 and 4, the steel trunks seized by him. The defence has cross-examined PW7 at length. It is stated by PW7 that though names of army personnel and their numbers were displayed on the trunks, no such army personnel were found in the army coach. However, it is admitted by PW7 that no army personnel has been cited as witness. 14. PW8 is a constable, who was on duty on 7.9.2007 at platform 1 of Guwahati Railway station, deposed that at about 7.30 AM on arrival of 5960 DN Kamrup Express at platform 1, they started checking the compartments. Inside a compartment they found one person with 4 numbers of trunks and suspicion arose in their mind to be carried ganja inside the trunks. Though the accused disowned the trunks, he was caught. The person found with the trunks disclosed them that he is travelling from Dimapur to his destination New Jalpaiguri. It is also in the evidence of PW8 that they brought down the person along with the trunks. It was weighed and found 220 kg and thereafter SI Ramesh Talukdar seized trunks containing suspected ganja in presence of him by the seizure list(exhibit 1) from the possession of the accused present in the dock. It is admitted by PW8 in his cross-examination that some other passengers were present in the compartment at the time of recovery of the trunks from the coach of the train. 15. Learned counsel for the appellant relying on the decision 2008 (1) GLT 205 Manik Debnath and Anr. . It is admitted by PW8 in his cross-examination that some other passengers were present in the compartment at the time of recovery of the trunks from the coach of the train. 15. Learned counsel for the appellant relying on the decision 2008 (1) GLT 205 Manik Debnath and Anr. . .vs..State of Assam, submitted that failure to observe the provisions of sub-section (2) of Section 42 of the Act, has vitiated the investigation and the conviction and sentence is liable to be set aside. Section 42 (2) reads as under : " (2) Whether an officer takes down any information in writing under sub-section (1) or records ground for his belief under the proviso thereto, he shall within seventy two hours send a copy therefor to his immediate official superior. " 16. In Directorate of Revenue v. Mohd. Nisar Holia, (2008) 2 SCC 370 , the Apex Court observed as follows: 13. Requirements of Section 42 was read into Section 43 of the NDPS Act. A somewhat different view, however, was taken subsequently. Decisions were rendered opining that in conducting search and seizure in public place or a moving vehicle, provisions appended to sub-section (1) of Section 42 would not be attracted. Decisions were also rendered that in such a case even sub-section (2) of Section 42 need not be complied with. 14. Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with. 17. It is made obligatory on the part of the officer, who makes such writing, to send a copy of such written information within 72 hours to his immediate superior officer. In his cross-examination, PW-7, the I.O. admitted not to have followed the provision. This is a clear violation of sub-section (2) of Section 42 of this Act. Therefore, apparently, this provision was not followed. 18. At this juncture, another pertinent question arises whether this provision is mandatory or not. The answer is apparently "yes" 19. In his cross-examination, PW-7, the I.O. admitted not to have followed the provision. This is a clear violation of sub-section (2) of Section 42 of this Act. Therefore, apparently, this provision was not followed. 18. At this juncture, another pertinent question arises whether this provision is mandatory or not. The answer is apparently "yes" 19. This sub-section clearly shows that information shall be forwarded to the immediate superior authority when such information is taken down in writing. In the instant case the information was taken down in writing Therefore, by necessary implication, if such information has been recorded by the officer, question of sending such information to superior officer does arise. Requirement under Section 42 of the Act for reducing the information into writing is mandatory. 20. Admittedly, the search and seizure was made on getting information in writing given by superior officer. There after the seizure was made. The provision of Section 42(2) of NDPS Act would also apply in the present case. Therefore, as contended by learned counsel for the appellant there is apparently violation of provisions of sub section 2 of Section 42 of the NDPS Act since the superior officer was admittedly never informed about the search and seizure made. 21. In the context of proof of possession if we look into the evidence of I.O., it would be apparent that their evidence are not at all acceptable to hold that the appellant was in conscious possession of the steel boxes , which were discovered in an Army compartment. No investigation was conducted to prove the factum of ownership of the boxes. Though the prosecution tried to say that the trunks were opened by the keys held by the accused but the keys of the boxes were never seized. Therefore, this aspect gives a severe jolt in the case of the prosecution in regard to the possession of the cartoon. 22. Let us now scrutinize evidences of search witnesses. It is found from the evidence on record that none of witnesses saw the actual recovery of the trunks. How the trunks which were locked could be opened is not clear. The keys were neither produced in the Court nor seized. 23. On a meticulous scrutiny of the evidence on record of prosecution witnesses, it would appear that accused Hari Thakuri was sitting on the ganja-laden trunks when on-duty police personnel were checking the compartment. How the trunks which were locked could be opened is not clear. The keys were neither produced in the Court nor seized. 23. On a meticulous scrutiny of the evidence on record of prosecution witnesses, it would appear that accused Hari Thakuri was sitting on the ganja-laden trunks when on-duty police personnel were checking the compartment. On being asked, accused said that the trunks did not belong to him but when the accused wanted call some one who according him was the owner he was caught, according to the witness the accused opened the steel boxes with his keys, but the opening of the trunks by the keys of the accused is not corroborated by the witnesses. 24. It is also evident from the cross-examination of PW7 that the names of the army personnel were displayed on the trunks, but no such army personnel with that names and numbers on the trunks were found inside the compartment. Though admittedly, as stated by P.W.6 the accused disowned the trunk. Subsequently he was caught as the accused was found sitting on the trunks . Though the I .O. said that the trunks which was locked was opened by key held by the accused but he key was never seized during investigation. 25. In such circumstances possibility of making the accused a scrape goat, by over enthusiastic officer cannot be ruled out. 26. Their testimony, therefore, cannot inspire confidence in the mind of the Court that the trunks, which contained Ganja had been seized from the possession of the appellants. Except the evidence of police official, namely, three police officers, there is no other evidence to show that the trunks had been found in the possession of appellant and had been seized from his possession. No doubt the accused appellant who was seen sitting over the box in the railway compartment was caught, but the trunks, which were locked , do not seem to have been opened by the key given by the appellant. Finding passengers in a railway compartment sitting on trunks and boxes is a common sight in Indian Railways. Therefore, requirement of law is not established by cogent and acceptable evidence. Law requires proof of conscious possession of the incriminating article for the purpose of proof of guilt of the accused appellants. Finding passengers in a railway compartment sitting on trunks and boxes is a common sight in Indian Railways. Therefore, requirement of law is not established by cogent and acceptable evidence. Law requires proof of conscious possession of the incriminating article for the purpose of proof of guilt of the accused appellants. When there is no such proof available on the record against the appellants, it would be futile to record a finding of conviction. 27. From the analysis of the facts and circumstances of this case, the evidence on record both oral and documentary and the law laid down by the Apex Court, this Court finds that learned trial court illegally noted the result of conviction of the appellants. This Court finds ample fault and lacuna in the case of the prosecution, which cannot justify the case of the prosecution to be in the right course meriting the conviction of the appellant. 28. The conviction and sentence thus awarded by the learned trial Court by the impugned judgment and order dated 18. 03. 2010 cannot be sustained in law against the appellants. The judgment and order of conviction are accordingly set aside and quashed. The appellant is acquitted and set at liberty, if he is not required in any other case. Send back the L.C.R.