JUDGMENT Hon’ble Alok Singh, J. This is an appeal against the judgment and order dated 21.09.2011 passed by Special Sessions Judge, [N.D.P.S. Act], Champawat, in Special Sessions Trial No. 5 of 2009, whereby appellant was found guilty for the offence punishable under Section 8/20 of the N.D.P.S. Act and was sentenced rigorous imprisonment for a period of ten years and to pay fine of Rs.1 lac, and in default of making payment of fine, to undergo additional simple imprisonment of six months. 2. 2. Brief facts of the present case, inter alia, are that on 11.12.2008, police party consisting of PW1 S.I. Bhagwati Prasad Bisht, PW2 Chowki Incharge Chalthi S.I. Shri Bachi Singh Bisht, constable Mahendra Giri, constable Hira Lal Verma, Head constable Bhupendra Singh and constable Bhupal Chandra left the police post Chalthi vide Report No. 10 at about 12:10 p.m. to maintain law and order and to check suspected vehicles and people; when police party reached at Chalthi Bridge, police informer passed on secret information to the effect that some people were carrying charas in Bolero Car No. HR38M-8210, if police party check them they could be arrested; having received secret information furnished by the police informer, police party tried to have independent public witness, however, none of the member of the public agreed to become independent witness; thereafter, members of the police party searched each other and believing that none of them was having contraband started waiting for the Bolero Car; at about 12:40, they saw white Bolero car coming from Champawat side; having seen the police party, Bolero Car stopped; immediately police party rushed toward Bolero Car, however, meanwhile, driver and persons sitting on the front seat as well as on the rear seat started running; person sitting next to the driver seat was caught by the police party; however two persons started running; they were chased by Constable Bhupal Chand and Constable Hira Lal Verma; however, both of them could not be apprehended; on being asked, accused disclosed his identity as appellant Sanjay Garg S/o Ramm Kishoe Garg, R/O Kasba Kithore, P.S. Kithore, District Meerut (U.P.); appellant also told to the police party that Sonu S/o Subhash Chandra R/o Shastri Nagar Meerut was driving the car while Man Singh S/o unknown R/o Zhariuo, P.S. Kithore, District Meerua was sitting on the back seat of the car; appellant was told that if he wish he could be searched in the presence of Gazetted Officer since it was his legal right; on this appellant told the police party he had complete trust on the police, therefore, could be searched by the police; on personal search of the appellant, Rs.600/- were recovered from the appellant; thereafter Bolero Car No. H.R.38M-8210 was checked; two white colour bags were found on opening the front engine side bonnet; bags were taken out wherein 20 polythene packets from one bag and 17 polythenes packets from second bag were recovered; having opened them, it was found that they were containing the charas; 37 kgs charas was found being carried in the polythenes bags; appellant started apologizing and told the police party that he was carrying the charas to Meerut; appellant was apprised about the offence committed by him punishable under Section 18/20 N.D.P.S. Act and was formally arrested at about 1:20 p.m. and contraband so recovered was kept under the seal and signature of PW1 S.I. Bhagwati Prasad Bist; sample seal was prepared at the spot; thereafter arrest and seizure memos were prepared at the spot and thereafter chick F.I.R. was got registered. 3. Investigation was handed over to PW6 Inspector Harendra Singh Bist who having investigated the matter, submitted the chargesheet against the appellant for the offence punishable under Section 8/20 N.D.P.S. Act. Learned Trial Court framed the charges for the offence punishable under Section 8/20 N.D.P.S. Act. Appellant denied the charges and claimed trial. 4. To prove the prosecution case, PW1 arresting Officer S.I. Shri Bhagwati Prasad Bist, PW2 S.I. Shri B.S. Bist, PW3 Head Constable Shri Bhupendra Singh Nagarkoti, PW4 Constable Shri Ajay Kumar, PW5 Head Constable Shri Jagdish Chandra and PW6 Investigating Officer, Inspector Shri Harendra Singh Bist were examined and, thereafter, statement of appellant was also recorded under Section 313 of the Cr.P.C. 5. From the side of defence, DW1 Rajendra Singh Bisht, DW2 Brahmpal, DW3 Sanjay Garg and DW4 Anil Kumar and DW5 Onkar Sharma were examined. 6. Having perused the entire material made available on record, learned Trial Judge was pleased to convict and sentence the appellant vide judgment and order impugned in the present appeal. 7. I have heard Mr. Harsh Pal Sekhon, learned counsel for the appellant and Mr. Raman Kumar Sah, learned A.G.A. assisted by Mr. K.S. Rana, learned Brief Holder for the State and have carefully perused the record. 8. Statement on oath of Sub Inspector PW1 Shri Bhagwati Prasad Bist and PW2 S.I. Shri B.S. Bist would reveal that at about 12:15, information was passed on to the police party to the effect that in a white colour Bulero car bearing No. H.R.38M-8210, charas was being transported, therefore, police party could stop and search the Bulero car; on believing the information, police party started waiting for Bolero car at Chalthi bridge; at about 12:40, Bolero car HR-38M-8210 was seen coming. 9. Undisputedly, no efforts were made by PW1 Shri Bhagwati Prasad Bist and PW2 S.I. Shri B.S. Bist or any other member of the police party to reduce such secret information in writing as required under Section 42 (1) of the N.D.P.S. Act nor such information was ever forwarded to the higher officer. 10. Hon’ble Apex Court in the case of Kishan Chand Vs. State of Haryana reported in (2013) 2 SCC 502 has held in paragraphs 19 and 21 as under:- “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. 10. Hon’ble Apex Court in the case of Kishan Chand Vs. State of Haryana reported in (2013) 2 SCC 502 has held in paragraphs 19 and 21 as under:- “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 V. State of Haryana, (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. When there is total and definite non-compliance of such statutory provisions, the question of prejudice loses its significance. It will per se amount to prejudice. These are indefeasible, protective rights vested in a suspect and are incapable of being shadowed on the strength of substantial compliance.” 11. Hon’ble Apex Court in the case of State of Delhi Vs. Ram Avtar reported (2011) 12 SCC 207 has held in paragraph 27 as under :- “It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. As already held by the Constitution Bench in Vijaysinh Chandubha Jadeja, the theory of “substantial compliance” would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudice against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance with the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial.” 12. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance with the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial.” 12. In view of the dictum of the Hon’ble Apex Court, non compliance of mandatory provision of Section 42 (1) of the Act is fatal for the prosecution. 13. There is another aspect of the case, i.e. as per the prosecution story, two bags containing 37 kgs. charas were kept under the front side bonnet of the Bolero jeep near and over engine. DW5 Onkar Sharma, who was automobile mechanic of Mahendra vehicle, stated that it would not be possible to keep two bags containing 37 kgs. charas under the front side engine bonnet of the jeep. Thus, in my considered view, story as set up by the prosecution seems to be highly doubtful. 14. Important suggestion was given to PW1 S.I. Bhagwati Prasad Bist, Arresting Officer, to the effect that on 10.12.2008, appellant alongwith Brahm Pal, Anil Rastogi and D.P. Arora was travelling in the Bolero car bearing No. H.R.38M-8210 and at about 9:00 p.m. they reached near the police post Chalthi; they requested the police party to permit them to go towards the Champawat; police party told them that they could not go after 8:00 p.m. on the hilly track; police party told them they could be permitted to go to Champawat if they pay Rs. 1,000/- as bribe; on this appellant shown his annoyance and ultimately he was arrested and falsely implicated in the present case. 15. In his statement recorded under Section 313 Cr.P.C., the appellant has specifically stated that from the police post Chalthi, he was taken to police station Champawat and was falsely implicated in the present case and nothing was recovered from his possession. 16. It has not been explained properly by the I.O. PW6 Harendra Singh Bist as to what proper steps were taken by him to apprehend other two persons who were allegedly with the appellant in the car and fled away from the spot. 17. In my considered opinion, floating statements of PW1 S.I. Bhagwati Prasad Bist and PW2 S.I. B.S. Bist that efforts were made to have independent witness, however, none could agree to become independent witness is not sufficient. 17. In my considered opinion, floating statements of PW1 S.I. Bhagwati Prasad Bist and PW2 S.I. B.S. Bist that efforts were made to have independent witness, however, none could agree to become independent witness is not sufficient. DW2 Brahmpal and DW3 Sanjay Garg stated that they were with the appellant. Both of them stated in the line of suggestion given to PW1 S.I. Bhagwati Prasad Bist, as observed hereinbefore. Their testimony cannot be ignored totally. 18. In view of the discussion made hereinbefore, prosecution story not only seems to be improbable but grave doubt has been created about the genuineness of the prosecution story. Therefore, it would not be safe to uphold the impugned judgment passed by the learned Court below. 19. Consequently, appeal is allowed. Impugned judgment and order dated 21.09.2011 passed by Special Sessions Judge, [N.D.P.S. Act], Champawat, in Special Sessions Trial No. 5 of 2009 is set aside. 20. Appellant stands acquitted from the charges leveled against him. Appellant is in jail. He may be released forthwith, if not wanted in any other case. 21. Let copy of the judgment alongwith L.C.R. be sent back to the lower court for information and compliance.