JUDGMENT : ADITYA KUMAR TRIVEDI, J. Sole appellant Rama Shankar Singh, who has been found guilty for an offence punishable under Section 20(b)(ii)(c) of the N.D.P.S. Act and has been directed to undergo Rigorous Imprisonment for 15 years as well as fined of Rs. 1,50,000/- (one lakh and fifty thousand) in default thereof to undergo Rigorous Imprisonment for three years additionally by Additional Sessions Judge-VII-cum-Special Judge, N.D.P.S. Act, Patna by judgment dated 22.11.2010, sentence dated 29.11.2010 in Khusrupur P.S. Case No. 95/2008, giving rise to Special Case No. 33/2008, 33A/2008 has preferred the instant appeal. 2. Ambika Manjhi (P.W. 4) had filed Written Report before Officer-in-Charge, Khusrupur Police Station on 22.07.2008 divulging the fact that while he along with other police constables was on night patrolling on 21.07.2008 at about 11:40 P.M., received confidential information that a person is carrying Ganja over Bus No. JH-01BD-2829, whereupon aforesaid bus was intercepted subsequently and one person was found over roof of aforesaid bus, who was apprehended and on interrogation disclosed his name Rama Shankar Singh, the appellant. Furthermore, he was told that in case he wants his search in presence of Gazetted Officer, same will be made available, however, he declined and on account thereof, was searched and during course thereof four packets of Ganja was recovered duly concealed beneath cotton sheet weighing 12 Kg., 9 Kg., 8 Kg., 6 Kg. respectively for which seizure-list was prepared in presence of seizure-list witnesses. On query, he (appellant) had detailed the source through which he was supplied aforesaid Ganja identifying Ram Pravesh Rai as well as Dinesh Rai. Accordingly, Khusrupur P.S. Case No. 95/2008 was registered under Sections 20, 22 of the N.D.P.S. Act and investigation was taken up, concluded by way of submission of charge-sheet whereupon cognizance was taken and trial commenced, concluded in a manner, subject matter of instant appeal. 3. The defence, as has been taken up by the appellant as well as coming from his statement recorded under Section 313 of the Cr.P.C., is of complete denial of occurrence as well as false implication. 4. While assailing the judgment of conviction and sentence, it has been submitted on behalf of the appellant that prosecution case is suffering from inherent defect because of the fact that prosecution is not at all clear right from inception of the prosecution from where recovery was made. 4. While assailing the judgment of conviction and sentence, it has been submitted on behalf of the appellant that prosecution case is suffering from inherent defect because of the fact that prosecution is not at all clear right from inception of the prosecution from where recovery was made. To support the same, it has been submitted that in the Written Report itself it has been incorporated that during search recovery was made beneath cloth while from the seizure-list (Exhibit-2) it is apparent that recovery has been shown from the possession of the appellant. It has also been submitted that on that very score the witnesses are not at all consistent. As such, prosecution version is found completely confused. 5. Furthermore, it has been submitted that the informant as well as the Investigating Officer had completely misconstrued the mandate of law by ignoring the same and that happens to be the reason behind non-application of mandatory provisions of law. Consequent thereupon the appeal is fit to be allowed. 6. The learned Additional Public Prosecutor though has supported the finding recorded by the learned Lower Court so far recovery part is concerned, but fairly concedes that mandatory provision of law has not been taken into consideration by the prosecution at the time of search and seizure, even during course of investigation as well as during course of trial. As such, fairly concedes that the judgment and sentence did not justify its prevalence. 7. There happens to be specific provision laid down under the N.D.P.S. Act obliging the prosecution to follow up right from search and seizure to avoid false implication because of the fact that it happens to be Special Act whereunder severe punishment is prescribed against the culprit. To put safeguard upon the accused, right from inception of the instant law the Hon’ble Apex Court times without number has cautioned the prosecution to follow up the mandate of law in its entirety and whenever lapses have been found, the judgment of conviction and sentence did not find concurrence. Recently in Sukhdev Singh Vs. State of Haryana, reported in A.I.R. 2013 SC 953, Paragraphs 13, 14, 15, 16, 17, 18, 19 and 20, which is quoted hereinbelow for ready reference, the effect of non-compliance of mandatory provision has been taken into consideration : 13. Recently in Sukhdev Singh Vs. State of Haryana, reported in A.I.R. 2013 SC 953, Paragraphs 13, 14, 15, 16, 17, 18, 19 and 20, which is quoted hereinbelow for ready reference, the effect of non-compliance of mandatory provision has been taken into consideration : 13. Now, the question that arises for consideration is as to at what stage and by what time the authorized officer should comply with the requirements of Section 42 of the Act and report the matter to his superior officer. Now, the question that arises for consideration is as to at what stage and by what time the authorized officer should comply with the requirements of Section 42 of the Act and report the matter to his superior officer. For this purpose, we must refer to Section 42 of the NDPS Act at his stage : “Section 42—Power of entry, search, seizure and arrest without warrant or authorisation—(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 persons 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 VA 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 VA 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 authorisation 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.” 14. Section 42 can be divided into two different parts. First is the power of entry, search seizure and arrest without warrant or authorization as contemplated under sub-section (1) of the said section. Second is reporting of the information reduced to writing to a higher officer in consonance with sub-section (2) of that section. Sub-section (2) of Section 42 had been a matter of judicial interpretation as well as of legislative concern in the past. Sub-section (2) was amended by the Parliament vide Act 9 of 2001 with effect from 2nd October, 2001. After amendment of this sub-section, the words “forthwith” stood amended by the words “within 72 hours”. In other words, whatever ambiguity or leverage was provided for under the unamended provision, was clarified and resultantly, absolute certainty was brought in by binding the officer concerned to send the intimation to the superior officers within 72 hours from the time of receipt of information. The amendment is suggestive of the legislative intent that information must reach the superior officer not only expeditiously or forthwith but definitely within the time contemplated under the amended sub-section (2) of Section 42. This, in our opinion, provides a greater certainty to the time in which the action should be taken as well as renders the safeguards provided to an accused more meaningful. In the present case, the information was received by the empowered officer on 4th February, 1994 when the unamended provision was in force. The law as it existed at the time of commission of the offence would be the law which will govern the rights and obligations of the parties under the NDPS Act. In the case of Basheer @ N.P. Basheer v. State of Kerala [ (2004) 3 SCC 609 ] wherein this Court was concerned with the Amending Act 9 of 2001 of the NDPS Act, the Court took the view that application of the Amending Act, where the trial had been concluded and appeal was pending on the date of its commencement and where the accused had been tried and convicted, would not apply. The contention that trials were not held in accordance with law was not sustainable for the reason that there could be direct and deleterious consequences of applying the amending provisions of the Act to trials which had concluded in which appeals were filed prior to the date of Amending Act coming into force. This would certainly defeat the first object of avoiding delay in such trials. Another Bench of this Court in the case of Jawahar Singh @ Bhagat Ji. v. State of GNCT of Delhi [ (2009) 6 SCC 490 ], while dealing with the amendments of Section 21 of the NDPS Act, the Court took the view that amendments made by Act 9 of 2001 could not be given retrospective effect as if it was so given, it would warrant a retrial which is not the object of the Act. The Court held as under : “9. It is now beyond any doubt or dispute that the quantum of punishment to be inflicted on an accused upon recording a judgment of conviction would be as per the law which was prevailing at the relevant time. As on the date of commission of the offence and/or the date of conviction, there was no distinction between a small quantity and a commercial quantity, question of infliction of a lesser sentence by reason of the provisions of the amending Act, in our considered opinion, would not arise. 10. It is also a well-settled principle of law that a substantive provision unless specifically provided for or otherwise intended by Parliament should be held to have a prospective operation. One of the facets of the rule of law is also that all statutes should be presumed to have a prospective operation only.” 15. No law can be interpreted so as to frustrate the very basic rule of law. It is a settled principle of interpretation of criminal jurisprudence that the provisions have to be strictly construed and cannot be given a retrospective effect unless legislative intent and expression is clear beyond ambiguity. The amendments to criminal law would not intend that there should be undue delay in disposal of criminal trials or there should be retrial just because the law has changed. Such an approach would be contrary to the doctrine of finality as well as avoidance of delay in conclusion of criminal trial. 16. The amendments to criminal law would not intend that there should be undue delay in disposal of criminal trials or there should be retrial just because the law has changed. Such an approach would be contrary to the doctrine of finality as well as avoidance of delay in conclusion of criminal trial. 16. Still, reference can be made to the judgment of this Court in the case of Ravinder Singh v. State of Himachal Pradesh [ (2009) 14 SCC 201 ], wherein this Court was dealing with the question as to what would be the law applicable for imposition of a sentence irrespective of when the trial was concluded with reference to Article 21 of the Act and provision of the Punjab Excise Act, 1914 as applicable and amended by H.P. Act 8 of 1995 where punishment was enhanced and minimum sentenced was provided. The Court held that it is trite law that the sentence imposable on the date of commission of the offence has to determine the sentence imposable on completion of trial?. 17. Even in the case of Hari Ram v. State of Rajasthan & Ors. [ (2009) 13 SCC 211 ], this Court stated with reference to the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended by Act of 2006) that the relevant date for applicability of the Act so as the age of the accused, who claims to be a child, is concerned, is the date of occurrence and not the date of trial. 18. In the present case, the occurrence was of 4th February, 1994. The Trial of the accused concluded by judgment of conviction dated 4th July, 1998. Thus, it will be the unamended Section 42(2) of the NDPS Act that would govern the present case. The provisions of Section 42 are intended to provide protection as well as lay down a procedure which is mandatory and should be followed positively by the Investigating Officer. He is obliged to furnish the information to his superior officer forthwith. That obviously means without any delay. But there could be cases where the Investigating Officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information into writing and send the said information to his superior officers but could do it later and preferably prior to recovery. That obviously means without any delay. But there could be cases where the Investigating Officer instantaneously, for special reasons to be explained in writing, is not able to reduce the information into writing and send the said information to his superior officers but could do it later and preferably prior to recovery. Compliance of Section 42 is mandatory and there cannot be an escape from its strict compliance. 19. This question is no more res integra and stands fully answered by the Constitution Bench judgment of this Court in Karnail Singh v. State of Haryana [ (2009) 8 SCC 539 ]. The Constitution Bench had the occasion to consider the conflict between the two judgments i.e. in the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat [ (2000) 2 SCC 513 ] and Sajan Abraham (supra) and 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. 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. Having referred to the above settled principle of law, we are unable to accept the contention raised on behalf of the State and have to grant our approval to the submission made on behalf of the appellant. 8. In the case of Vijay Jain Vs. State of Madhya Pradesh, reported in (2013)14 SCC 527, it has been held : 9. Having referred to the above settled principle of law, we are unable to accept the contention raised on behalf of the State and have to grant our approval to the submission made on behalf of the appellant. 8. In the case of Vijay Jain Vs. State of Madhya Pradesh, reported in (2013)14 SCC 527, it has been held : 9. Para 96 of the judgment of this Court in Noor Aga Case on which the learned Counsel for the State very strongly relies is quoted herein-below: (SCCp.464) “96 Last but not least, physical evidence relating to three sample taken from the amount of heroin was also not product. Even if it is accepted for the sake of argument that the bulk quantity was destroyed, the sample were essential to be produced and proved as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under Section 52-A of the Act.” Thus in para 96 of the judgment in Noor Aga case this Court has held that the prosecution must in any case produce the sample even where the bulk quantity is said to have been destroyed. The observation of this court in the aforesaid paragraph of the judgment do not say anything about the consequence of Non-production of the contraband goods before the court in a prosecution under the NDPS Act. 10. On the other hand, on a reading on this court’s judgment in Jitendra case, we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the beat evidence to prove this fact is to produce during the trial, the seized materials as material object and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witness have turned hostile. Again, in Ashok this court found that alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non-production and this Court held that there was no evidence to connect the forensic report with the substance that was seized from the possession of the appellant. 9. In the case of State of Delhi Vs. Ram Avtar Alias Rama, reported in (2011) 12 SCC 207 , it has been held: 27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favoring the accused, compliance therewith should be strictly construed. As alredy 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 make it obligatory upon the officer concerned to make the suspect aware of such right 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 oof section 50 of the Act would cause prejudice to the accused, and therefore, amount to the denial of a fair trial. 10. In the case of Kishan Chand Vs. State of Haryana, reported in A.I.R. 2013 SC 357, it has been held : “21. 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. 22. 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. 22. The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non-compliance of these provisions in their entirety, the Court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevancy. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non-compliance of the provision.” 11. Now coming to the evidence on record to search out whether the aforesaid mandate of law has been complied with or not, it is apparent from the Written Report that the informant had not disclosed that sampling was made at the spot soon after search and seizure. The same evidence has been reiterated by P.W. 4 during course of trial, and as such, failed to disclose with regard to preparation of sampling after Investigating Officer conducted search and seizure. Furthermore, neither in the Written Report nor in the evidence of P.W. 4 it has been disclosed that before checking of bus, on having been informed regarding passing of narcotic substance he had passed information to his superior and in likewise manner even after arrest as well as preparation of Written Report, search, seizure, he had messaged the aforesaid event to his senior. The same kind of evidence has also been made by P.W. 1, the Investigating Officer. Furthermore, he had stated that he had filed application before the Special Judge and as per direction, sampling was made in presence of Registrar, Civil Court, Patna and then was sent to the Forensic Science Laboratory for test wherefrom the report is available (Exhibit-7) suggesting it to be a Ganja. Furthermore, he had stated that he had filed application before the Special Judge and as per direction, sampling was made in presence of Registrar, Civil Court, Patna and then was sent to the Forensic Science Laboratory for test wherefrom the report is available (Exhibit-7) suggesting it to be a Ganja. However, he failed to narrate where the aforesaid seized Ganja were kept during the intervening period, was in sealed condition and on which date requisition was made rather he had stated that on 03.08.2008 he had received the order and then thereafter the same was sent to the Forensic Science Laboratory. However, again the Investigating Officer is silent with regard to the fact coming out from Exhibit-7 that the articles were sent vide Letter No. 1245 dated 02.08.2008 and the same was received at the office on 06.08.2008, having not properly been explained that where the samples were kept during the intervening period. Not only this, the prosecution also failed to produce seized material as well as sample before learned Lower Court during course of trial. It is also apparent that there happens to be complete silence with regard to follow up action in terms of sub-section (2) of Section 52(A) of the N.D.P.S. Act. 12. Now, coming to remaining witnesses. P.W. 2 and P.W. 3 are seizure-list witnesses who have simply exhibited their signature over the seizure-list without supporting the factum of search and seizure. Apart from this, the other members of the raiding party have neither been examined nor reasonable explanation is there on behalf of the prosecution for their non-examination. 13. The cumulative effect of aforesaid deficiencies, infirmities, did not justify concurrence of the judgment impugned. Consequent thereupon same is set aside. Appeal is allowed. The appellant is in jail custody, hence, directed to be released forthwith, if not wanted in any other case.