Judgment Samapti Chatterjee, J. 1. The appellant preferred the instant appeal assailing the Judgment and Order of conviction passed in N.D.P.S. Case No.3 of 2005 under Section 20 of the N.D.P.S. Act by the Learned Judge, Special Court under N.D.P.S. Act, Jalpaiguri on 2nd July, 2008 convicting the appellant/petitioner for the offence punishable under Section 20 of the N.D.P.S. Act and as such he is convicted and sentenced to suffer Rigorous Imprisonment for 10 (ten) years and to pay a fine of rupees One lakh in default, to suffer further Rigorous Imprisonment for one year. 2. Put in a short frame the prosecution case runs as follows: “On 09.04.2005 at about 8.35 hours S.I Rinchen Lama Bhutia received a secret information from one person over telephone who did not disclose his name stating that two persons are proceeding to Delhi from New Alipurduar Railway Station by Down Rajdhani Express with three pieces of luggage with them containing ganja. On getting such information S.I. R.L. Bhutia along with S.I. T.K. Patwari, C/249 Mangal Rai, C/27 Debananda Das, C/241 Badal Chandra Barman proceeded towards New Alipurduar Railway station. On arrival at New Alipurduar G.R.P.S. A.S.I Amitabh Sarkar was directed to prepare the force and also informed him about the reason for the visit. After going to the New Alipurduar Railway Station platform No.1 was thoroughly searched with the officers and force before arrival of Delhi Down Rajdhani Express and it was noticed that two persons with similar description of luggage as stated by the source were found waiting near the Railway over bridge of platform no.1. After seeing the police personnel they became restless and on seeing this S.I R.L. Bhutia directed his party to cordon the persons with the luggage kept in front of them. Thereafter those persons were interrogated and they disclosed their names as Ajit Sarkar and Nazir Ahmed and stated that they are going to Delhi by Rajdhani Express. On interrogation they disclosed that ganja was there inside the luggage and they failed to produce any document in support of lawful possession of ganja. Option was offered to them regarding the search, the persons disclosed that they are willing to be searched in presence of a Magistrate. Then the accused person was brought to Alipurduar Junction G.R.P.S. At about 11.55 hrs after receiving message Magistrate arrived at G.R.P.S.. Option was offered to them regarding the search, the persons disclosed that they are willing to be searched in presence of a Magistrate. Then the accused person was brought to Alipurduar Junction G.R.P.S. At about 11.55 hrs after receiving message Magistrate arrived at G.R.P.S.. In his presence containers were opened and in total 55 kgs of ganja was found. Thereafter police seized the articles and lodged FIR in Alipurduar being G.R.P.S. Case No.04 of 2005 dated 09.04.2005 under Section 20 of the N.D.P.S. Act. On completion of investigation police submitted charge sheet against the accused. Accordingly trial started and after completion of trial the learned Trial Judge convicted the appellant as aforesaid.” 3. In order to prove the case prosecution has examined as many as six witnesses. 4. P.W.1, S.I of police stated in his evidence that on 09.04.2005 at about 8.35 a.m. he received a telephonic information that two persons were supposed to travel by Down Rajdhani Express possessing ganja with them. He was also informed that those two persons were carrying with them one suitcase and two side bags. He further deposed that he narrated the same in the G.D. Book of G.R.P.S. (Exbt.1) and then at about 8.40 hours on 9th April, 2005 he left the FRPS with force to ascertain the information at New Alipurduar Railway Station. After reaching there the P.W.1 along with his police force searched for some time and detected two persons assembled, as per the information received by him, under the bridge of platform no.1. He further deposed that they found one suitcase lying on the platform by the side of them and on it one red-black coloured side bag was also found. One man was also found with on black-coloured bag. He then cordoned the accused persons with force and ascertained from the accused person that they were about to proceed to Delhi by Down Rajdhani Express. He then enquired regarding contents of the bag, then two accused persons made inconsistent statements which caused suspicion about their activities. On interrogation accused confessed that they were carrying ganja with them in those containers. On further interrogation one of them disclosed his name as Ajit Sarkar and another Nazir Ahmed, the appellant. P.W.1 then apprised the accused for their option according to law whether they intended to be searched by the police personnel or by any Magistrate. On interrogation accused confessed that they were carrying ganja with them in those containers. On further interrogation one of them disclosed his name as Ajit Sarkar and another Nazir Ahmed, the appellant. P.W.1 then apprised the accused for their option according to law whether they intended to be searched by the police personnel or by any Magistrate. Accused opted for search and seizure by a Magistrate. He further deposed that at that time at the platform there were many passengers of the train who noticed the raiding party but avoided to be witness of the incident. Thereafter P.W.1 took two accused persons to the New Alipurduar GDRPP and there he made the GD at about 10.15 hours (Exbt.3). Thereafter P.W.1 took the accused persons along with the articles with them to Alipurduar Junction GRPS. Immediately after arriving at the Alipurduar GRPS PW1 made a GD Entry (Exbt.3/2). At about 11.55 hours on 9th April, 2005, Mr Dewan Palzor, BDO 1, Alipurduar and Deputy Magistrate arrived at the GRPS. The Magistrate asked one of the accused to open the containers in his presence. Then it was detected that each of the containers contained ganja wrapped with gray polythene and the containers tied white cellotape. All the containers along with the accused persons were taken to the railway parcel office for weighment. It was detected on weighment that the rexin bag contained 20kgs of ganja and red side bag contained 17 kgs ganja and another black bag contained 18 kgs of ganja, total 55 kgs of ganja. P.W.1 prepared the seizure list in presence of Magistrate and accused persons and also seized two side bags, one suit case and one journey-cum-reservation ticket and ganja in presence of one Suraj Kumar Thapa, S.I of RPF and Dipan Lahiri, independent witness. P.W.1 then took out 50 grams of sample of ganja from each container and prepared a sample seizure list. He also labeled the suitcase and rexin bags (Mat. Exbt.I & II respectively). Thereafter on the basis of his complaint Alipurduar GRPS Case No.4/5 dated 09.04.2005 under Section 20 of NDPS Act was started against two accused persons namely Ajit Sarkar and Nazir Ahmed and formal FIR was drawn up by him (Exbt.7). He also labeled the suitcase and rexin bags (Mat. Exbt.I & II respectively). Thereafter on the basis of his complaint Alipurduar GRPS Case No.4/5 dated 09.04.2005 under Section 20 of NDPS Act was started against two accused persons namely Ajit Sarkar and Nazir Ahmed and formal FIR was drawn up by him (Exbt.7). In his evidence he further stated that he informed whole gist of the case to his superior through e-mail but the said e-mail was not seen in CD and there was also no mention in the FIR regarding sending of information to his superior through e-mail. He further deposed that bags and suitcase were stamped but labels were not affixed. Furthermore, there was no mention in GD about handing over the alamat to Malbabu. There were official seals of the Officer in charge on the labels. No railway ticket was seized from the accused. He further stated that he did not enquire of the accused person personally with regard to the details of the railway ticket. The independent witness signed on the labels of alamats. He further deposed that he did not take any assistance of RPF personnel. When Magistrate arrived and ganja were wrapped in the green polythene and kept in the bags and suitcase, no railway staff was made witness in the seizure list. Before the Court alamats were produced and after opening it was found that the wraps were loose and in torn condition. The parcel officer of the railway station who weighted the alamats were not the witness to the seizure list. 5. P.W.2 is the independent witness but he was declared hostile by the prosecution. 6. P.W.3, S.I of police now posted at New Cooch Behar GRPS who in his evidence stated that he was informed of the raid and Officer in charge came at about 9 a.m. and as per Officer in charge’s direction they were posted at different places. Rajdhani Express reached at about 10.45 a.m. in the station. Officer in charge asked them to cordon two persons and accordingly they cordoned two persons. P.W.2 along with other officers found a briefcase and two bags. The accused persons disclosed before them that briefcase and two bags were containing ganja. Then the accused persons were taken to police station. Magistrate was also informed. In presence of Magistrate bags were opened. Officer in charge asked them to cordon two persons and accordingly they cordoned two persons. P.W.2 along with other officers found a briefcase and two bags. The accused persons disclosed before them that briefcase and two bags were containing ganja. Then the accused persons were taken to police station. Magistrate was also informed. In presence of Magistrate bags were opened. One bag contained 17 kgs of ganja and other contained 18 kgs of ganja and the briefcase contained 20 kgs of ganja. P.W.3 further deposed that he did not state to the Investigating Officer about arrival of the Rajdhani Express at about 10.45 a.m. He further deposed that two accused persons were arrested near over bridge at platform no.1. P.W.3 failed to ascertain that which bags and suitcase packets or the attaché were in possession of whom (accused persons). He further deposed that seizure was not made at the platform. Seizure was made after one and half hour at the chamber of the Officer in charge, G.R.P.S. Those alamats were kept in the police station which was at a distance of 7 km away from the railway station. 7. P.W.4 Inspector of CBI deposed in the same tune and identical manner as P.W.1 and P.W.3. He stated that at the time of receiving the accused persons he was not present, therefore he could not tell the actual time of receiving. Seizure was made in the chamber of O/C GRPS. He further deposed that the distance between railway platform and the parcel office was less then 100 yards. He stated before the Investigating Officer that O/C GRPS told him that they received two bags and one suitcase from two persons namely Naziar Ahmed and Ajit Sarkar. 8. P.W.5 was the Deputy Magistrate, Collector in Darjeeling. He in his deposition stated that in his presence as per his direction O/C opened the bags. One of the accused had the key of the suitcase and with the help of the key the suitcase was opened. First bag was opened and it was found to contain a packet covered with green polythene. After breaking the locks of two bags, bags were opened as the case were not available and two packets covered with green polythene were found. All the packets were opened in his presence and ganja was found inside the packets. All those alamats were weighed in the railway weighment house. After breaking the locks of two bags, bags were opened as the case were not available and two packets covered with green polythene were found. All the packets were opened in his presence and ganja was found inside the packets. All those alamats were weighed in the railway weighment house. He signed the seizure list (Exbt.4/5). He further stated that articles which were seized were sealed in his presence. But the bag was produced in ragged condition. He further stated that he did not know whether the key by which one bag was opened was seized or not. He also deposed that he could not recollect if the broken locks of the bags were seized by the Investigating Officer or not. There was no mention in the seizure list in respect of seizure of keys and broken locks. 9. P.W.6 was the Investigating Officer who visited the place of occurrence and prepared rough sketch map of the scene along with index (Exbt.9 and 9/1 respectively). When he was asked whether he seized railway tickets from the possession of accused persons then P.W.6 answered that he did not seize railway tickets from the possession of the accused persons. He collected samples from police station. He did not sign on the Property Register on receipt of samples. He sent the samples to Central Drug Laboratory on 11th April, 2005 (Exbt.1, 2 and 3). He also sent a forwarding letter along with FSL form. He further stated that he handed over the samples to Malkhana but initially he did not make note of that. He further deposed that P.W.4 did not tell him that O/C GRPS told him that they had recovered two bags and one suitcase from two persons called Nazir Ahmed and Ajit Sarkar. He did not seize any key or broken locks. He did not examine any railway employee except P.W.4, RPF personnel. 10. Mr. P.S. Bhattacharya, learned Advocate appearing for the appellant contended that the option of search and seizure was not properly taken from the accused persons. Prosecution has utterly failed to make out any case against the appellant. Only one independent witness was produced but he was declared hostile by the prosecution. P.W.5 made new story of key of the suitcase supplied by the accused. Prosecution has utterly failed to make out any case against the appellant. Only one independent witness was produced but he was declared hostile by the prosecution. P.W.5 made new story of key of the suitcase supplied by the accused. He also cooked up a story of breaking locks of two bags though neither any key nor broken locks were ever seized by the police. The weighment of the ganja took place at the parcel office of the platform which was 100 yards away from the railway station. 11. Mr. Bhattacharya further vehemently contended that seizure was not done at the platform. Seizure was made at the chamber of the Officer in charge, G.R.P.F. More so, alamats were kept in the police station. 12. Mr. Bhattacharya further contended that P.W.6 the Investigating Officer stated that he collected samples from police station and he did not sign on the Property Register on receipt of the samples. Mr. Bhattacharya also urged that P.W.6 stated that he did not examine any railway employee except P.W.4. He further urged that P.W.5 stated that the seized articles were sealed with gala in presence of him but when produced it was found that the packets were loose and in torn condition. 13. Mr. Bhattacharya finally submitted that prosecution miserably failed to prove their case against the appellants. Therefore, considering the facts and circumstances Court should allow the appeal by setting aside the impugned Judgment and Order. 14. On the other hand Ms. Kakali Chatterjee learned Advocate appearing for the State submitted that it would be evident from the testimonies of P.W.1, P.W.3, P.W.4 and P.W.5 that prosecution has been able to prove its case against the appellant as the appellant was arrested from the platform of New Alipurduar Railway Station possessing 55 gms of ganja contained in two bags and one suitcase. 15. Ms. Chatterjee further contended that seizure was properly done after following all the formalities and there were no lacunae or loosends in respect of the investigation on the part of the prosecution. Therefore, Hon’ble Court should affirm the Order passed by the learned Judge of Special Court under NDPS Act, Jalpaiguri. 16. On a close and critical analysis of the evidence both oral as well as documentary with meticulous care we find that P.W.1, P.W.3, and P.W.4 all deposed in a same tune and identical manner. Therefore, Hon’ble Court should affirm the Order passed by the learned Judge of Special Court under NDPS Act, Jalpaiguri. 16. On a close and critical analysis of the evidence both oral as well as documentary with meticulous care we find that P.W.1, P.W.3, and P.W.4 all deposed in a same tune and identical manner. It is evident from the evidence of P.W.1 that he informed gist of the case to his superior by sending e-mail but no e-mail was seen in the CD. Therefore, we have no hesitation to hold that Section 42(2) of the N.D.P.S. Act was not complied with in the present case though the Supreme Court in the catena of decisions clearly let down that the provision in Section 42(2) of the N.D.P.S. Act is a mandatory one and non compliance of it is never permissible. We also find from the testimonies of the witnesses that there was no mention in the CD about handing over the alamat to the Malbabu. We also find that the P.W.2, independent witness was declared hostile by the prosecution. No railway staff was made witness to the seizure list and weighment although they were made in the parcel office which was 100 yards away from the railway platform. We also cannot ignore the fact that P.W.1 stated that the sample packets were loose and in torn condition when those were produced before the Court. We also cannot ignore that P.W.3 in his evidence stated that the alamats were kept in the police station and police station was 7 km away from the railway station. Furthermore, seizure was done at the police station after one and half hour. We also find from the testimony of P.W.5 that one of the accused was possessing a key of the suitcase and the suitcase was opened with the said key. Two bags were opened after breaking the locks but none of the broken locks or the key were seized by the police. It is also evident from the testimony of P.W.6 that he did not seize any journey ticket of the accused persons from their possession. 17. Two bags were opened after breaking the locks but none of the broken locks or the key were seized by the police. It is also evident from the testimony of P.W.6 that he did not seize any journey ticket of the accused persons from their possession. 17. We find from the answer of the appellant under Section 313Cr.P.C. against question no.7 the accused stated that “Suitcase and two bags were kept at Alipurduar GRPS office before the arrival of the Magistrate and after arrival of the Magistrate the accused was also taken to that place and they were asked to open the suitcase”. It is also found that appellant in his answer to the question no.8 stated that it was not known to him whether those articles were weighed in office or not as he was not present there. 18. In answer to question no.9 the appellant stated that neither he was travelling nor he had any ticket. He was apprehended from a rickshaw stand and not from Alipurduar Junction Station. In answer to the question no.13 under Section 313 Cr.P.C appellant stated that no key was supplied by him to the officer and it was a false allegation against him. 19. Considering all the materials on record, in our opinion the prosecution has miserably failed to prove to the hilt that the appellant is guilty of the offence for which he is charged. Therefore the appellant namely Nazir Ahmed is acquitted. 20. The Judgment of the Special Court is set aside. 21. The appellant shall be set at liberty forthwith unless required in any other cases. 22. The other accused namely Ajit Sarkar neither preferred any appeal separately against the impugned Judgment and Order dated 2nd July, 2008 passed in N.D.P.S. Case No.3 of 2005 under Section 20 of the N.D.P.S. Act by the Learned Judge, Special Court under N.D.P.S. Act, Jalpaiguri nor joined as appellant with present appellant Nazir Ahmed in the present appeal being CRA 569 of 2008.