JUDGMENT : ADITYA KUMAR TRIVEDI, J.:–Appellants Nizam Mian @ Nizamuddin Mian and Ranjan Kumar have been found guilty for an offence punishable under Section 22(C ) of the N.D.P.S. Act and further each of them has been directed to undergo rigorous imprisonment for ten years as well as also sentenced with a fine appertaining to Rs. One lac in default thereof, to undergo simple imprisonment for two and half years vide judgment of conviction dated 18.01.2012 and order of sentence dated 23.01.2012 passed by the Second Additional Sessions Judge, West Champaran, Bettiah in Trial No.33 of 2009 and on account thereof, has been challenged under instant appeal. 2. PW-3 Mirtunjay Jha, a Sepoy posted at Rail P.P. Motihari gave his fard-bayan on 01.08.2009 at about 10.15p.m. at platform no.1 of Bapu Dham Motihari Railway Station disclosing therein that he along with Constable Krishna Ram, Murari Singh, Arvind Kumar Singh were deputed at Chakia Railway Station and for that they were waiting for train. At about 8.20p.m. Awadh Express (9039 Down) came at platform no.1. Then thereafter he had received confidential information from an informer regarding presence of two smugglers carrying ‘Ganja’ in coach no.B/1 AC-III Tier over which he along with other constable gone inside the bogie and found two persons sleeping over birth no.17 and 23. No other passengers were present in the bogie. He had further found beneath birth no.17, 20, 23, two big attaché, air bag and three cartons were kept. He checked all of them and found ‘Ganja’. Thereafter, he awaken both two persons and enquired from them with regard to articles which they claimed. Hence, he informed Officer-in-charge through Constable Arvind Singh, whereupon they came, enquired about identity of both two passengers who disclosed his name Nizam Mian as well as Ranjan Kumar respectively and further claimed the articles. Also confessed that they were carrying ‘Ganja’ from Narkatiaganj to Muzaffarpur at the instance of one Mumtaj Mian, for which they were paid Rs.5,00/-. The aforesaid articles were seized and for that seizure list was prepared in presence of Vishambhar Mahto and Kishori Lal. The total weight of seized ‘Ganja’ happens to be 85 kilograms. 3. Also confessed that they were carrying ‘Ganja’ from Narkatiaganj to Muzaffarpur at the instance of one Mumtaj Mian, for which they were paid Rs.5,00/-. The aforesaid articles were seized and for that seizure list was prepared in presence of Vishambhar Mahto and Kishori Lal. The total weight of seized ‘Ganja’ happens to be 85 kilograms. 3. On the basis of the aforesaid fard-bayan, Rail P.S. Sugauli (Motihari) Case no.41 of 2009 was registered under Section 21, 22 of the N.D.P.S. Act, whereupon investigation commenced and concluded by way of submission of charge sheet leading to trial meeting with ultimate result, the subject matter of instant appeal. 4. From the mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C., the defence of appellants happens to be complete denial of the occurrence as well as of false implication. 5. In order to substantiate its case, prosecution had examined altogether eight PWs. Out of whom, PW-1 Dashrath Rout, PW-2 Suryadev Kumar, PW-3 Mirtunjay Jha, PW-4 Vishambhar Mahto, PW-5 Kishori Lal, PW-6 Ram Balak Singh, PW-7 Vashundhar Kumar and PW-8 Sri Krishna Ram. Side by side also exhibited, exhibit-1 fard-bayan, exhibit-1/1 endorsement over fard-bayan, exhibit-1/2 signature of informant over fard-bayan, exhibit-2 seizure list, exhibit-2/1 signature of one of the seizure list witnesses Vishambhar Mahto, exhibit-3 FSL report. Neither oral nor documentary evidence has been adduced on behalf of defence. 6. Now, coming to nature of evidence, it is apparent that PW-4 though admitted his signature over seizure list had not supported the case of the prosecution while PW-5, PW-6, PW-7 have blatantly disowned the case of the prosecution and on account thereof, were declared hostile. Therefore, the case rest upon evidence of police personnel only so examined as PW-1, PW-2, PW-3 and PW-8. 7. The first and foremost question has arisen over mode of search and seizure. Chapter-V deals with Procedure wherein Section 42 is the first stage whereunder authorization for search and seizure is perceived and for that all the officials so enumerated therein above the post of sepoy as notified by the Central Government or State Government were found proper authority to effect search and seizure. The aforesaid theme is to be perceived right from fard-bayan of PW-3 whereunder he had categorically stated that after getting information from an informer regarding transshipment of ‘Ganja’ by the smuggler in AC-III Tier bogie identified by B/1. The aforesaid theme is to be perceived right from fard-bayan of PW-3 whereunder he had categorically stated that after getting information from an informer regarding transshipment of ‘Ganja’ by the smuggler in AC-III Tier bogie identified by B/1. He along with other sepoy gone inside, seen two attaché, one bag and three cartons, which were duly checked by him and having it ascertained to be ‘Ganja’, awaken both of passengers occupying seat nos.17 and 23 who claimed all the articles and then thereafter, the O/c was informed. The informant Mirtunjay Jha has been examined as PW-3, in para-2 he had stated that after getting information, he along with Arvind, Krishna, Murari gone inside the bogie found two persons occupying the seat nos.17 and 23 and further found three cartons, two attaché and a bag beneath the seat. Thereafter, he had directed Arvind Singh to inform O/c who came along with others and then took control over the situation. 8. PW-2 is the O/c, had stated that on being informed by Constable Arvind Singh, he along with other police personnel gone inside AC coach of 9039 Down where Mirtunjay Jha was standing and at his pointing out, attaché, bag along with cartons were seized. Two persons were also apprehended who confessed their guilt. 9. From the evidence of PWs-2 and 3, it is evident that there happens to be certain concealment during course of their evidence. However, defence failed to draw attention both of them on that very score and on account thereof, defence is not in a position to avail benefit therefrom. 10. During course of scrutinizing the evidence of PW-2 the O/c, it is evident that he had not deposed during his examination in-chief regarding reporting of the matter to his Superior Officer in terms of Section 57 of the Act which speaks like as follows:— Report of arrest and seizure.— Whenever any person makes any arrest or seizure under this Act, he shall, within forty eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest of seizure to his immediate official superior. 10.(i) This issue should be perceived in two parts. The first one, identifying PW-3 to be the person who intercepted the smuggler along with ‘Ganja’ weighing 85 kilograms and had informed the O/c, the Officer Superior to him. 10.(i) This issue should be perceived in two parts. The first one, identifying PW-3 to be the person who intercepted the smuggler along with ‘Ganja’ weighing 85 kilograms and had informed the O/c, the Officer Superior to him. Then in that event, as per Section 42 of the Act, PW-3 was not competent authority to make search and seizure, in case presence of PW-2 is accepted as the authority who indulged in search and seizure, then in that event, there was no occasion to PW-3 to stand as an informant rather PW-2 should have recorded his own fard-bayan justifying his presence during course of search and seizure. Moreover, even if accepting his presence, his evidence on the score of compliance of mandate of Section 57 is found lacking. 11. In likewise manner there happens to be complete absence of evidence on the score of sampling as well as non-compliance of Section 52(A) of the N.D.P.S. Act. PW-2, the O/c had not claimed himself to be the I.O. nor he disclosed that he was any way involved during course of sampling. Moreover, he had not deposed with regard to compliance of Section 55 of the N.D.P.S. Act whereunder, O/c is expected to take control over the seized articles and in whose supervision the sampling was to be effected. I.O. has not been examined. The remaining PW-1, PW-3 and PW-8 are totally ignorant on that very score. From the fard-bayan itself including that of evidence of PW-2 as well as PW-3, so many packets of ‘Ganja’ were recovered two attaché, one bag and three cartons. Therefore, for want of specific assertion and claim on behalf of prosecution that sampling was made amalgamating all the material kept under different packets from different bags, the process of sampling is found much more confused due to lapses on the part of the prosecution and even though having the FSL report affirming the sample to be that of ‘Ganja’ is not going to improve the prosecution case in any manner. Furthermore from the order sheet, it is evident that on 17.09.2009 prayer was made by the I.O. for sending of sample, but on which date it was transmitted to F.S.L. is conspicuously absent. However, neither the PW-1, PW-2, PW-3, PW-8 have spoken about custody of seized material exhibit nor for want of examination of I.O., truth found exposed. Furthermore from the order sheet, it is evident that on 17.09.2009 prayer was made by the I.O. for sending of sample, but on which date it was transmitted to F.S.L. is conspicuously absent. However, neither the PW-1, PW-2, PW-3, PW-8 have spoken about custody of seized material exhibit nor for want of examination of I.O., truth found exposed. Furthermore, during conduction of trial, material exhibit has not been brought up before the Court. 12. Consequent thereupon, the ultimate beneficiary, in the background of aforesaid deficiency persisting on the record are the appellants. As such, the aforesaid deficiency are such in nature which did not justify prevalence of judgment impugned furthermore. Hence, the judgment impugned is set aside. Appeal is allowed. Both the appellants named above are under custody. Hence, they are directed to be released forthwith if not wanted in any other case.