JUDGMENT Hon’ble Alok Singh, J (Oral). 1. All the three appeals are directed against the judgment and order dated 08.11.2012 passed by Special Sessions Judge, Champawat in Special Sessions Trial No. 13 of 2011 and Special Sessions Trial No. 14 of 2011 whereby both the appellants were found guilty for the offence punishable under Section 8/20 of the NDPS Act and both were sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 2,00,000/- each and in default of making payment of fine, to undergo additional imprisonment of 2 years. 2. Appellant Wajeer Singh Malik has filed one appeal through Mr. Vipul Sharma, Advocate and another through Jail Authorities. Since all the appeals are interconnected and are against the same and common judgment, therefore, all the appeals are being taken up together and are being disposed of by this common judgment with the consent of learned counsel for both the parties. 3. Brief facts of the present case, inter alia, are that PW1 U.R. Arya along with PW2 Sub Inspector Prakash Ram Vishwakarma, Sub Inspector Khushal Singh, Head Constable Pramod Singh, Constable Deepak Kapri left the police station in Government Vehicle bearing no. UA 03 4747 being driven by Driver Inder Singh vide report no. 21 at about 12.20 p.m. for vehicle checking; when police party was checking the vehicles at Laluwapani Tiraha, meanwhile, Constable Anees Ahmad, Constable Mahendra Giri, Constable Deepak Khanka, Constable Dileep Kumar of SOG team reached, Laluwapani Tiraha at about 02.00 p.m. and told the police party headed by PW1 U.R. Arya that they had secret information that a car bearing no. HR 56 6013 was coming from the side of Khetikhan and as per secret information received, charas was being carried in that car; having received this information from SOG team, PW1 U.R. Arya requested members of public to become independent witness, however, none of them agreed to become independent witness, consequently, PW1 along with other members of police party and members of SOG team reached to Punawey Tiraha wherefrom one road was going towards Sikti; Government vehicle was parked on the road going towards Sikti and police personnel started waiting for suspected car; after some time, car bearing no. HR 56 6013 was seen coming from of village Nariyal; car was signalled to stop and car was stopped near Punawey Tiraha; police personnel surrounded the car from every side and found one person was driving the car while another was sitting on the rear seat of the car; occupiers of the car were told by the police that they had reliable secret information that they were carrying charas, therefore, if they wish, they could be searched in presence of a Gazetted Officer or a Magistrate; on this, occupiers of the car desired to be searched in presence of a Magistrate; Mr. Anurag Arya, Tehsildar, Champawat was informed on his mobile phone bearing no. 9411423317 and was requested to come on the spot; after some time, Mr. Anurag Arya came on the spot in his Government Vehicle; entire incident was narrated to him; thereafter, both the occupiers of the car were asked to disclose their identity; person who was driving the car, disclosed his name as Wajeer Singh Malik, son of Sardara Singh, resident of Lalit Khera, Police Station Jind Sadar, District Jind (Haryana); on search, one plastic bag was found kept under the front seat adjacent to driver seat; bag was taken out and found containing charas; on his personal search, Rs.1650 in cash, was recovered from Wajeer Singh Malik; person sitting on the rear seat of car disclosed his name as Devraj Goyal, son of Chatur Goyal, resident of village Garhwal, police station Baroda, District Sonipat; one bag was found between the legs of Devraj Goyal and from that bag also, charas was recovered; on his personal search, one Nokia Mobile and ‘ 3630 were recovered; from the bag recovered from the front seat, 10 kg of charas was recovered whereas from the bag recovered from rear seat, 11.800 kg of charas was recovered; charas, so recovered, were kept in different seal covers under the seals and signatures of PW1; thereafter, both the appellants and contraband, so recovered brought to the police station and check FIR was registered on 01.08.2011 at 06.50 p.m. 4. Investigation was handed to PW4 Sub Inspector Shweta Tiwari. Investigation was handed to PW4 Sub Inspector Shweta Tiwari. An application was moved by PW4 Sub Inspector Shweta Tiwari, Investigating Officer before the Special Sessions Judge, Champawat on 02.08.2011 for recording the statements of appellants under Section 164 Cr.P.C. Learned Special Sessions Judge, Champawat directed the CJM to record statements of both the appellants under Section 164 Cr.P.C. On 03.08.2011, confessional statements of both the appellants were recorded under Section 164 Cr.P.C. by CJM, Champawat. 5. Investigating Officer Shweta Tiwari PW4, having investigated the matter, filed two charge-sheets against both the appellants separately, on which Special Sessions Trial No. 13 of 2011 against appellant Wajeer Singh Malik while Special Sessions Trial No. 14 of 2011 against appellant Devraj Goyal were registered. 6. Both the trials were consolidated and during trial from the side of prosecution PW1 U. R. Arya, PW2 Prakash Ram Vishwakarma, PW3 Constable Manoj Kumar, PW4 Investigating Officer Shweta Tiwari, PW5 Constable Manoj Kumar and PW6 Prakash Sing Saun were examined. Thereafter, statements of both the appellants were recorded under Section 313 Cr.P.C. 7. Having perused the material available on the record, learned Special Sessions Judge, Champawat was pleased to pass judgment and order impugned in the present appeals. 8. I have heard Mr. M.S. Pal, Sr. Advocate for the appellants and Mr. K.S. Rautela, AGA assisted by Mr. P.S. Danu, Brief Holder for the State and have carefully perused the record. 9. Mr. K. S. Rautela, learned AGA, on being asked, fairly submits that after receiving information from SOG to the effect that charas was being transported in a vehicle bearing no. HR 56 6013, PW1 U.R. Arya did not reduce the information in writing. He further submits that since there was scarcity of time, therefore, information could not be reduced in writing but Tehsildar was informed about the incident and was requested to come on the spot, Tehsildar reached on the spot and in his presence, search was conducted, therefore, Section 42 of the NDPS was duly complied with. 10. Hon’ble Apex Court in the case of Kishan Chand Vs. State of Haryana reported in 2013 (2) SCC 502 , having considered the various judgments of Hon’ble Apex Court, in paragraph 19 has observed as under: “19. The provisions like Section 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. State of Haryana reported in 2013 (2) SCC 502 , having considered the various judgments of Hon’ble Apex Court, in paragraph 19 has observed as under: “19. The provisions like Section 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in the case of Karnail Singh (2009) 8 SCC 539 carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds.” 11. In the case of Kishan Chand (supra), police party had received secret information when police party was on patrolling duty and in these circumstances, Hon’ble Apex Court has held that having received secret information, it must be reduced in writing and thereafter must be communicated to the higher officials without losing any time. 12. In the present case, secret information was received by the police party headed by PW1 at Laluwapani Tiraha and thereafter, they started making search for independent witness but did not reduce the information in writing. Not only this, as per statement of PW1 U.R. Arya, Tehsildar was informed about the incident telephonically and was requested to come on the spot, he reached on the spot after some time, meanwhile, PW1 could have reduced the secret information in writing and could have informed about the incident to his higher officials but no compliance of Section 42 of the NDPS Act was made, therefore, in view of the dictum of Hon’ble Apex Court in the case of Kishan Chand (supra) conviction in the present case cannot be said to be justified. 13. As per the contents of FIR and statement of PW 1 U.R. Arya appellants desired to be searched in the presence of Magistrate; Mr. Anurag Arya, Tehsildar Champawat was requested to come on the spot telephonically; after some time Mr. Anurag Arya, Tehsildar came on the spot; in the presence of Mr. Anurag Arya, Tehsildar search was conducted. However, surprisingly Mr. Anurag Arya, Tehsildar, has not been examined. There is no independent public witness of search and seizure. Floating statement that none could agree to become independent witness is of no help to the prosecution. In my considered view, search and seizure has not been proved beyond reasonable doubt. 14. Mr. Anurag Arya, Tehsildar search was conducted. However, surprisingly Mr. Anurag Arya, Tehsildar, has not been examined. There is no independent public witness of search and seizure. Floating statement that none could agree to become independent witness is of no help to the prosecution. In my considered view, search and seizure has not been proved beyond reasonable doubt. 14. Mr. K.S. Rautela, learned AGA submits that since both the appellants have confessed their guilt in their respective confessional statements recorded by CJM, Champawat on 03.08.11 under Section 164 Cr.P.C. therefore, non compliance of Section 42 of the NDPS Act losses its importance. 15. Perusal of the lower court record reveals that both the appellants were produced before Special Sessions Judge, NDPS Act on 02.08.2011 and both the appellants were directed to be sent to the judicial custody till 12.08.2011, however, surprisingly, it was directed that both the appellants shall be kept in police lock up at Lohaghat. 16. Mr. M.S. Pal, learned Sr. Advocate, vehemently argued that appellants should have been sent to the jail instead of issuing direction to keep them in police lock up. He further contends that both the appellants were produced before the CJM from police lock up, therefore, their confessional statements recorded by the Magistrate without giving sufficient opportunity are of no assistance to the prosecution. There is no doubt that Investigating Officer moved an application before Special Sessions Judge, NDPS on 02.08.2011 for recording the confessional statements of appellants under Section 164 Cr.P.C. whereupon learned Special Sessions Judge directed the CJM to record the statements of appellant on 03.08.2011 and both the appellants were produced before CJM on 03.08.2011 from police lock up. 17. Hon’ble Apex Court in the case of Sarwan Singh Vs. 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. 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.” 18. Hon’ble Apex Court in the case of Rabindra Kumar Pal Vs. Republic of India reported in 2011 (2) SCC 490 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.” 19. (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.” 19. In view of dictum of Hon’ble Apex Court, although no hard and fast rule can be framed as to the time, which should be allowed to the accused person before recording the confessional statement under Section 164 Cr.P.C. However, minimum 24 hours time should be granted to the accused to rethink before giving confessional statement. Judicial confession, not given voluntarily, is unreliable and before recording the confessional statement, Magistrate should ensure that confessional statement should be voluntary without any pressure or coercion of police. Learned CJM should have sent the appellants to jail after taking them out from lock up and should have made them understand that confessional statement could be used against them before recording the same. The way confessional statements were recorded cannot be appreciated. In my considered opinion, confessional statements of the appellants, so recorded, are of no help to the prosecution. 20. Appellant Wajeer Singh Malik in his statement recorded under Section 313 Cr.P.C. stated that he was driving the car and one Dilip Singh was also in the car and he kept those bags in the cars, however, police allowed him to go and have implicated both the appellants falsely. 21. In the considered opinion of this Court, for non compliance of mandate of Section 42 and non compliance of dictum of Hon’ble Apex Court in the case of Sarwan Singh (supra) and Rabindra Kumar (supra) statement recorded under Section 164 losses its importance, therefore, it would not be safe to convict the appellants. 22. For the foregoing reasons, in my considered opinion, prosecution fails to prove its case beyond reasonable doubt, therefore, all the appeals are allowed. Impugned judgment and order dated 08.11.2012 passed by Special Sessions Judge, Champawat in Special Sessions Trial No. 13 of 2011 and Special Sessions Trial No. 14 of 2011 is hereby set aside. Appellants are acquitted of the charges levelled against them. Appellants are in jail. Let they be released forthwith, if not wanted in any other case. 23. Let a copy of this judgment be placed on each connected file. 24. Appellants are acquitted of the charges levelled against them. Appellants are in jail. Let they be released forthwith, if not wanted in any other case. 23. Let a copy of this judgment be placed on each connected file. 24. Let a copy of this judgment be forwarded to the court below for compliance along with lower court record.