Judgment Heard Mr. D.K. Tandon, learned counsel for the appellant, Mrs. Abha Singh and Mr. Dasrath Mehta, Additional Public Prosecutors for the State. 2. This appeal is directed against the judgment of conviction dated 16th January, 2013 and the order of sentence dated 18th January, 2013 passed by the learned 9th Additional Sessions Judge, Muzaffarpur in Rail P.S. Case No.68 of 2007/32 of 2012, whereby the sole appellant has been convicted under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”) and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-. The appellant has further been convicted under section 22 of the NDPS Act and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-. However, both the sentences have been ordered to run concurrently. In default of payment of fine the appellant has been directed to undergo further rigorous imprisonment for two years. 3. According to the prosecution case, the officer-in-charge Shashi Bhusan Singh (P.W.4) of Rail Police Station, Muzaffarpur received secret information at 9.15 p.m. on 7th September, 2007 that one person who had got down from Raxaul-Muzaffarpur passenger train at platform no.3 was carrying something suspicious in a carton and was proceeding towards platform no.6. In order to verify the information received, the officer-in-charge of the police station along with Sub Inspector of Police Ramashish Paswan (P.W.5) proceeded towards platform no.6. They located one person carrying a carton on his head and asked him to stop but he threw the carton and ran towards toilet in order to escape. He was chased and caught. He was brought near the place where he had thrown the carton. On enquiry, the person apprehended disclosed his identity as Nand Kishore Bhagat son of Ramchandra Bhagat. He further disclosed that he was carrying twelve kilograms ganja in the carton for the purposes of sale to one Suresh Chaudhary, resident of Kalyan Chowk, Muzaffarpur. The carton, so recovered, was searched in presence of two local independent witnesses Manoj Kumar Singh (P.W.1) and Rakesh Jha (P.W.2). The search resulted in recovery of two packets of ganja kept in a polythene bag and further kept in the carton. The ganja weighed twelve kilograms and was seized by a seizure memo. The two witnesses and the accused appellant put their respective signatures over the seizure memo. The search resulted in recovery of two packets of ganja kept in a polythene bag and further kept in the carton. The ganja weighed twelve kilograms and was seized by a seizure memo. The two witnesses and the accused appellant put their respective signatures over the seizure memo. Thereafter, the appellant was taken into custody. 4. The officer-in-charge Shashi Bhusan Singh (P.W.4) of Rail Police Station, Muzaffarpur, after seizing ganja and apprehending the accused handed over investigation of the case to the Sub Inspector of Police Ramashish Paswan (P.W.5) at the place of occurrence itself. Thereafter, on the basis of self statement of P.W.4 Rail (Muzaffarpur) P.S. Case No.68 of 2007 was registered at 00.45 a.m. on 8th September, 2007 under sections 20 and 22 of the NDPS Act. 5. On conclusion of investigation, the investigating officer Ramashish Paswan (P.W.5) submitted charge-sheet no.107 of 2007 dated 6th November, 2007. On 20th November, 2007 cognizance of the offence was taken. Thereafter, the court below framed charges for the offences punishable under sections 20 and 22 of the NDPS Act against the appellant on 15th October, 2008. The appellant denied the charges levelled against him and claimed to be tried. 6. In course of trial altogether five witnesses were examined on behalf of the prosecution. Out of them two seizure memo witnesses Manoj Kumar Singh (P.W.1) and Rakesh Jha (P.W.2), turned hostile in course of trial. They denied to have any knowledge regarding the occurrence. They stated that ganja in question was not recovered in their presence and the police had taken their respective signatures on blank sheet of paper. Their evidence is of no help to the prosecution. 7. P.W.3 Raj Kumar has also been declared hostile by the prosecution. He was also cross-examined by the prosecution but nothing cogent could come in his cross-examination. 8. P.W.4 Shashi Bhushan Singh is the informant of the case. He has proved the seizure memo, the written report and the formal FIR in course of trial. He has corroborated the prosecution case as narrated in the FIR in his examination-in-chief. However, in cross-examination he admitted that he never transmitted any written information to his superior officer in respect of receipt of confidential information regarding the offence. He admitted in cross-examination that the representative sample of seized ganja was not drawn by him. He has corroborated the prosecution case as narrated in the FIR in his examination-in-chief. However, in cross-examination he admitted that he never transmitted any written information to his superior officer in respect of receipt of confidential information regarding the offence. He admitted in cross-examination that the representative sample of seized ganja was not drawn by him. He also admitted that it is not mentioned in the written report that the seized ganja has been kept in Malkhana. He stated that the seized packets of ganja were sealed but never produced before the court. In further cross-examination he stated that the packets of ganja were sealed in the police station and the seized ganja was in the Malkhana. 9. The last witness examined on behalf of the prosecution is Ramashish Paswan (P.W.5), the investigating officer of the case. He has also corroborated the prosecution version as narrated in the FIR. He further contended in his examination-in-chief that he recorded the subsequent statement of the informant. He also recorded the statement of witnesses to the seizure memo and other witnesses like Raj Kumar, Laxman Yadav and Umesh Patel. He took sample of the seized ganja and sent the same to the Forensic Science Laboratory for chemical examination. On conclusion of investigation, he submitted charge-sheet in the court. In cross-examination he admitted that the seized ganja was not sealed and the packets containing ganja were simply kept in the carton. He also admitted his ignorance about the quantity of ganja drawn for sample from the seized ganja. He further admitted that the seized ganja was not in his possession. 10. It would be pertinent to mention it here that after investigation was over, the Regional Director, Forensic Science Laboratory, Muzaffarpur sent the report directly to the court of the District and Sessions Judge, Muzaffarpur, vide R.F.S.L. No.612/ 2007 dated 23rd July, 2010. It appears from perusal of the report that one Tin Dibba said to contain sample of Ganja seized in connection with the case in question was sent by Ramashish Paswan (P.W.5) on 2nd November, 2007 to the office of the Regional Director, Forensic Science Laboratory, Muzaffarpur. It appears from perusal of the report that one Tin Dibba said to contain sample of Ganja seized in connection with the case in question was sent by Ramashish Paswan (P.W.5) on 2nd November, 2007 to the office of the Regional Director, Forensic Science Laboratory, Muzaffarpur. The result of the examination of the sample reads as under: “The brown dry Pressed Flowering and Fruiting Vegetable substances contained in the tin dibba described above was found to be Ganja containing Tetra hydro cannabinol (T.H.C.) Tetra hydro cannabinol is as its chief intoxicating ingredient. Ganja is flowering and Fruiting tops of the female plant of cannabis sativa.” 11. On the request of the Special Public Prosecutor, the court below took the said report in evidence and marked the same as Ext.5 in course of trial on 29th July, 2010. It appears that the report of the Forensic Science Laboratory has been taken into evidence in terms of section 294 of the Code of Criminal Procedure. 12. Learned counsel for the appellant strongly urged that the trial court has erroneously convicted and sentenced the appellant for the offences punishable under sections 20 and 22 of the NDPS Act. He pointed out that this was a strange case where the material objects viz. two packets of ganja weighing twelve kilograms alleged to have been seized from the custody of the appellant were not at all produced at the trial. Though it was the case of the prosecution that the recovered ganja was kept in the Malkhana, neither were the material objects produced in the trial, nor was the Malkhana incharge examined during the trial to prove that the packets containing ganja were ever deposited in Malkhana. He urged that even the Malkhana register was not produced before the trial court. He urged that there is no definite evidence as to when and by whom the sample was drawn or sealed. According to him, there was no material whatsoever before the trial court to prove that the sample which was dispatched to the Forensic Science Laboratory was actually drawn from the ganja alleged to have been seized from the appellant. He stated that there was no material before the trial court to reach to a conclusion that the ganja, in question, was ever recovered from the appellant. 13. He stated that there was no material before the trial court to reach to a conclusion that the ganja, in question, was ever recovered from the appellant. 13. Learned counsel for the appellant has further urged that the provisions of section 52A of the NDPS Act are mandatory and there was a violation of these provisions in the matter of drawing of sample as the sample had been drawn without the requisite order of the Magistrate as contemplated under section 52A of the NDPS Act. 14. Learned counsel for the appellant has further urged that as per prosecution case the appellant was apprehended on 7.9.2007 at about 9.15 p.m. The place of occurrence is hardly at a distance of 200 meters from the court concerned. Despite this, the appellant was produced before the court on 9th September, 2007. There is no explanation as to why the appellant could not be produced before the court concerned on 8th September, 2007. 15. I find force in the submissions made on behalf of the appellant. The evidence to prove that the ganja was recovered from the possession of the appellant consisted of the evidence of the police officers and the witnesses to the seizure memo. The witnesses to the seizure memo have turned hostile. Thus, I find that apart from the testimony of the Shashi Bhushan Singh (P.W.4) and Ramashish Paswan (P.W.5), there is no independent witness as to the recovery of ganja from possession of the appellant. The ganja alleged to have been seized from possession of the appellant was not even produced before the trial court. There is nothing on record to connect the sample sent to the Forensic Science Laboratory with the so called seized ganja. There is no cogent evidence as to who drew the sample. There is also no evidence on record to show that the sample taken from the seized ganja was ever sealed in presence of any witness. There is also nothing on record to show that the sample had been drawn under the order of the Magistrate as contemplated under section 52A of the NDPS Act. The trial court has not dealt with such vital issues while deciding the case. 16. I further find from the evidence on record that the informant and the investigating officer proceeded to the place of occurrence on receipt of confidential information. The trial court has not dealt with such vital issues while deciding the case. 16. I further find from the evidence on record that the informant and the investigating officer proceeded to the place of occurrence on receipt of confidential information. However, the investigating agency completely ignored the mandate of section 42 of the NDPS Act. 17. Section 42 of the NDPS Act, reads as under:- “42. 16. I further find from the evidence on record that the informant and the investigating officer proceeded to the place of occurrence on receipt of confidential information. However, the investigating agency completely ignored the mandate of section 42 of the NDPS Act. 17. Section 42 of the NDPS Act, reads as under:- “42. Power to entry, search, seizure and arrest without warrant or authorization.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he 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 this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: PROVIDED THAT if such officer has reason to believe that a search, warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior.” 18. In the present case, the officer-in-charge of the police station Shashi Bhushan Singh (P.W.4) has admitted in cross- examination that he did reduce in writing any information as required under section 42(1) of the NDPS Act. He further admitted that no written information was ever transmitted to the immediate official superior in terms of section 42 of the NDPS Act. 19. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat since reported in (2000) 2 SCC 513 , a three Judge Bench of the Apex Court held that compliance with Section 42 of the NDPS Act is mandatory and failure to take down the information in writing and forthwith send a report to immediate superior officer would cause prejudice to the accused. In Sajan Abraham v. State of Kerala since reported in (2001) 6 SCC 692 , a three Judge Bench of the Apex Court held that Section 42 was not mandatory and substantial compliance was sufficient. The conflicting opinions regarding the scope and applicability of Section 42 of the NDPS Act is no more res integra and stand answered by a Constitution Bench judgment of the Apex Court in Karnail Singh v. State of Haryana since reported in (2009) 8 SCC 539 . In the said judgment, the Apex Court noticed, if there is total non-compliance with requirements of sub-sections (1) and (2) of Section 42, the same would be impermissible. However, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. The Apex Court in paragraph-35 of the judgment in Karnail Singh (supra) held as under: “35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The Apex Court in paragraph-35 of the judgment in Karnail Singh (supra) held as under: “35. In conclusion, what is to be noticed is that Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information (of the nature referred to in sub-section (1) of Section 42) from any person had to record it in writing in the Register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.” 20. From the evidence as discussed, hereinabove, apparently, there is absolute non-compliance with the provisions of Section 42 of the NDPS Act and in view of Constitution Bench judgment of the Apex Court in case of Karnail Singh (supra), the conviction of the appellant would clearly be unsustainable on this ground alone. 21. I further find that the prosecution has failed to explain as to why the appellant could not be produced on 8th September, 2007 after being apprehended in the night of 7th September, 2007. 22. Taking the cumulative effect of all the circumstances, it appears that the material placed on record by the prosecution does not bring home the charges beyond reasonable doubt. I am of the view that upon the materials placed on record it would be unsafe to convict the appellant. He is certainly entitled to the benefit of doubt. 23. In the result, I allow the appeal, set aside the judgment of the trial court and quash the conviction of the appellant. I am of the view that upon the materials placed on record it would be unsafe to convict the appellant. He is certainly entitled to the benefit of doubt. 23. In the result, I allow the appeal, set aside the judgment of the trial court and quash the conviction of the appellant. The appellant Nand Kishore Bhagat is directed to be released from custody forthwith, if not required in any other case. Appeal allowed.