JUDGMENT Appellant, while languishing in jail, has preferred this jail appeal through jail authorities challenging the judgment and order dated 18.05.2009 passed by Sessions Judge, Pithoragarh in Sessions Trial No. 9 of 2007 whereby learned Sessions Judge found the appellant guilty for the offence punishable under Section 20 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs. 1,00,000/- failing which to undergo additional imprisonment for two years. 2. Brief facts of the present case, inter alia, are that Sub Inspector Ajay Shah (PW4) lodged an FIR with police station Jhoola Ghat, District Pithoragarh on 05.07.2007 at 01.25 p.m. stating therein that on 05.07.2007, he along with Constable Govind Singh PW1 and Constable Santosh Dobhal went on patrolling duty in Government Vehicle No. UA 08 B 9616; they were checking the vehicular traffic; at about 11.45 a.m. police party noticed that appellant was going on foot towards Banada and appellant having noticed the police party started behaving abnormally; police party on the suspicion asked him to stop and thereafter, detained him; appellant was asked the reason of his behaving abnormally; on this appellant disclosed his name as Akbar Rana and told the police personnel that he was carrying 1 kg of charas in his bag; on this PW4 SI Ajay Shah asked the appellant to produce the license of charas but appellant failed to produce any document and started apologizing for carrying charas; on this PW4 asked the appellant, if he wished, he could be searched in the presence of a Gazetted Officer/Magistrate; on this appellant stated that he did not wish to be searched in presence of a Gazetted Officer / Magistrate and has told the police personnel that he had trust on the police party, therefore, police party may conduct the search; on this a consent letter was prepared on the spot, thereafter, police personnel searched each other and on being satisfied that none of them had any illegal material, took the bag from the appellant and found charas therein. Constable Santosh Dobhal was sent to police station in order to bring a balance (weighing scale); at about 12.25 p.m. Constable Santosh Dobhal brought the balance and on being weighed, charas was found to be of 1 kg; appellant was told that he had committed an offence punishable under Section 20/22 NDPS Act and was arrested at 12.30 p.m.; charas, so recovered, was once again kept in the bag carried by the appellant and bag was kept in a seal cover under the seal of PW4; specimen seal of PW4 was also prepared and thereafter, appellant along with contraband was brought to police station. FIR was got registered at 01.25 p.m., investigation was handed over to PW5, who commenced the investigation on the next day i.e. on 06.07.2007. 3. Appellant was produced before the Chief Judicial Magistrate on 06.07.2007 where his confessional statement was got recorded by the Chief Judicial Magistrate, Pithoragarh under Section 164, Cr.P.C. Sample was taken out with the permission of Chief Judicial Magistrate and was sent for chemical examination and as per the report of chemical examiner, sample was found to be of charas. After completion of investigation, charge-sheet was submitted against the accused appellant. 4. Designated Court framed charge against the appellant for the offence punishable under Section 20/22 of the NDPS Act. Appellant did not admit his guilt and claimed trial. 5. From the side of prosecution, PW1 constable Govind Singh, PW2 Clerk Bal Kishan, PW3 Constable Firoz Ahmad, PW4 SI Ajay Sah and PW5 Deevani Ram Arya were examined. Statements of accused appellant were also recorded under Section 313, Cr.P.C. 6. Learned trial court, having examined the entire material made available before it, was pleased to convict and sentence the appellant vide impugned judgment and order herein. 7. I have heard Mr. Nandan Arya, Advocate for the appellant and Mr. H.O. Bhakuni, Brief Holder for the State and have carefully perused the record. 8. Mr. Nandan Arya, learned counsel for the appellant has vehemently argued that prosecution has failed to show that at what time contraband, so recovered, was deposited in the Malkhana of the police station and at what time, it was taken out from the Malkhana for producing it before the Chief Judicial Magistrate and at what time, the same was again deposited in the Malkhana. He further argued that it is not clear that whether sample was taken out from the contraband, so recovered, in the presence of the Chief Judicial Magistrate. 9. Mr. Nandan Arya further submits that taking permission of Chief Judicial Magistrate to take out sample from the contraband is not sufficient compliance. There is nothing on record to show that Magistrate has checked and compared the sample seal with the seal on the seal cover; has compared and checked the entries / noting made on the seal cover containing the charas; has compared / checked the inventories made by the police officer. There is no certificate to the effect that sample was taken out after breaking the seal in the presence of the Magistrate and packets containing the sample and contraband were resealed in the presence of the Magistrate. 10. Mr. Nandan Arya, further submits that soon after the arrest of the appellant, information, on the prescribed form, should have been forwarded to the higher officers but in the present case, no such material is produced to show that information was immediately forwarded to the higher officers. 11. Mr. Nandan Arya, further contends that as per the prosecution story, information was sent on wireless set, which is not sufficient compliance. He further states that Magistrate has recorded the confessional statement of the appellant under Section 164, Cr.P.C. in haste and he has not given even 24 hours time to the appellant to make such confessional statement. He should have recorded the statement of appellant after giving him sufficient time and explaining him that such confessional statement can be read against him. He has pointed out certain contradictions in the statements of prosecution witnesses as a result of which recovery, seizure of contraband and arrest of the appellant becomes highly doubtful. 12. He has argued that appellant in his statement recorded under Section 313, Cr.P.C. stated that on 05.07.2007 he was in inebriated state, after consuming liquor, thereafter, he was brought to the police station and has been falsely implicated in the case and no recovery was made from him. 13. PW4 SI Ajay Sah in his statement has deposed that there was no residence near the place wherefrom the appellant was apprehended and there was no movement on the road, therefore, he could not find out any public witness for the alleged search, seizure of contraband and arrest of the appellant. 13. PW4 SI Ajay Sah in his statement has deposed that there was no residence near the place wherefrom the appellant was apprehended and there was no movement on the road, therefore, he could not find out any public witness for the alleged search, seizure of contraband and arrest of the appellant. He further deposed that he has sent the information to the superior officers about the arrest of appellant and seizure of contraband from his possession on RT Set after coming to the police station. Information sent on RT Set is on record as Exhibit K 10. PW4 has nowhere stated that he has drawn the sample of charas or sample was drawn in his presence. 14. In the FIR, PW4 mentioned that he has requested some of the public members, who were going on the road to become a witness, however, none of them agreed to become a witness while in his statement on oath, he stated that there was no house nearby and there was no movement, therefore, no public witness could be found. PW4 has taken self contradictory stand in the FIR as well as while appearing in the witness box. 15. PW5, the Investigating Officer states that he knows that there is a SSB and Custom colony near the area where appellant was detained, searched and arrested. In the firm opinion of this court, PW4 arresting / searching officer should have made sincere efforts by requesting the SSB/ Custom officials to become the witness of the search, seizure and arrest. Floating statement in the FIR that none has agreed to become a public witness is nothing except the eye wash. 16. Not only this, as per GD report No. 22, endorsed at 01.25 p.m., information about the arrest and seizure of contraband is said to have already been forwarded to the higher officers through RT Set, however, as per Exhibit K 10, the same information is said to have been forwarded to the superior officers on RT Set at 2.30 p.m. If information was forwarded at 02.30 p.m. on 05.07.2007, then how entry could be made at earlier point of time i.e. at 01.25 p.m. on the same day that information has been forwarded to the superior officers on RT Set. Therefore, compliance of Section 57 of the NDPS Act becomes doubtful. 17. Therefore, compliance of Section 57 of the NDPS Act becomes doubtful. 17. Constable Dobhal, who is said to have brought the weighing scale from police station, has not been examined. PW1 during his cross-examination stated that Constable Santosh Dobhal brought only three weights viz. 1 kg, 500gm, 100gm while PW4 in his cross-examination states that Constable Dobhal has brought weight of 1kg, 500g, 200g, 100g while PW2 stated that Constable Dobhal brought the entire kit of weights containing weight of 50g, 100g, 500g, 1kg, 2kg, 5 kg, 10kg and 20 kg and the entire kit was sent by him through Constable Dobhal. There are contradictions in the statements of PW1, PW2 and PW4 Arresting Officer. 18. Not only this, Investigating Officer PW5 stated that he had not checked the weighing scale and weights sent from police station by which charas was weighed by PW4. PW5 Investigating Officer stated that he has reached the police station Jhoola Ghat in the morning of 06.07.2007 and he has checked the entire material submitted by PW4 he has also put his seal and signature thereon and he has recorded the statement of PW1, PW2, PW3 and PW4 in the police station and thereafter went to the spot along with PW3 and made a site plan of the spot in the presence of PW4, while PW4 stated that he did not go to the spot along with Investigating Officer PW5 and site plan was not prepared in his presence. 19. PW3 Constable Firoz Ahmad during cross-examination, has stated that when contraband was produced before the Magistrate at that time bag containing the contraband was having signature and seal of PW1 Govind Singh, PW4 Ajay Lal Shah and Constable Santosh Dobhal. He nowhere stated that the bundle was carrying a seal and signature of PW5 while Investigating Officer PW5 states that after reaching the police station Jhoolaghat he had checked the bundle and has put his seal and signature thereon. If he has put his seal and signature, then why his signature was not noticed by PW4. It illustrates that PW5 has neither checked the bundle nor had put his seal and signature thereon. 20. In view of the above discussion search, seizure and arrest of the appellant as alleged by the prosecution seems to be highly doubtful. 21. If he has put his seal and signature, then why his signature was not noticed by PW4. It illustrates that PW5 has neither checked the bundle nor had put his seal and signature thereon. 20. In view of the above discussion search, seizure and arrest of the appellant as alleged by the prosecution seems to be highly doubtful. 21. It has not been brought on the record that inventory prepared by the PW4, his sample seal, entries in case diary, entries on the seal, packet containing the contraband were checked, compared and certified by the Magistrate, at the time of granting remand of the appellant. No such certificate of the Magistrate is produced on the record. 22. PW5 the Investigating Officer stated that he has produced the accused and contraband before the Chief Judicial Magistrate, Pithoragarh. Thereafter, he has moved an application before Chief Judicial Magistrate, Pithoragarh to record confessional statement of appellant under Section 164, Cr.P.C. and on his application, confessional statement of accused appellant was recorded by the Chief Judicial Magistrate under Section 164, Cr.P.C. 23. The way confessional statement of the appellant was recorded on the same day, by the Chief Judicial Magistrate i.e. on 06.07.2007 cannot be appreciated. Chief Judicial Magistrate should have granted sufficient time, at least 24 hours time, to the appellant to re-think before making confessional statement. 24. Hon'ble Apex Court in the case of Sarwan Singh v. State of Punjab, reported in AIR 1957 SC 637 has held as under: "It would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case before recording his confession under Section 164. However, speaking generally, it would be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded." 25. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded." 25. Hon'ble Apex Court in the case of Rabindra Kumar Pal v. Republic of India, reported in 2011 (2) SCC 490 : ( AIR 2011 SC 1436 ) has held as under: "The following principles emerge with regard to Section 164, Cr.P.C.:- (i) The provisions of Section 164, Cr.P.C. must be complied with not only in form, but in essence. (ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. (iv) The maker should be granted sufficient time for reflection. (v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. (vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession. (vii) Non-compliance of Section 164, Cr.P.C. goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. (viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him. (ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court. (x) Confession of a co-accused is a weak type of evidence. (xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement." 26. (ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court. (x) Confession of a co-accused is a weak type of evidence. (xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement." 26. In the opinion of this Court, PW5 as well as CJM, Pithoragarh have miserably failed to follow the guidelines laid down by the Hon'ble Apex Court reproduced hereinabove, before recording the confessional statement of appellant. An undue haste shown by PW5 as accepted by CJM creates a reasonable doubt in the mind of this Court that nothing was above board. 27. In view of the discussion made herein above in the firm opinion of this Court, prosecution has failed to prove its case beyond reasonable doubt, therefore, appeal is allowed. Impugned judgment and order under appeal is set aside. Appellant stands acquitted. He shall be released forthwith, if not wanted in any other case. 28. Let a copy of this judgment be sent to the court below for information along with lower court record. Appeal allowed.