JUDGMENT : ADITYA KUMAR TRIVEDI, J.:–Sole appellant, Khooti Yadav @ Mukhlal Yadav has been found guilty for an offence punishable under Section 20B (II)C, 22C and 23C of the NDPS Act vide judgment dated 28.02.2012 and sentenced to undergo R.I. for 10 years as well as fine Rs.1,00,000/-(one lac) in default thereof to undergo S.I. for two years additionally, respectively, under each counts with a further direction to run the sentences concurrently vide order dated 01.03.2012 passed by Additional Sessions Judge, IIIrd–cum- Special Judge, West Champaran at Bettiah in Purushottampur P.S. Case No.21 of 2009, Trial No.6 of 2010 is the subject matter of instant appeal. 2. PW-1, Harihar Prasad Singh, Officer-in-charge of Purushottampur P.S. recorded his own fardbeyan on 14-07-2009 at about 07:00 A.M. disclosing therein that after having been confidentially informed regarding carrying of Ganja by a person at Marjdawa Jeep Stand, the raiding party was constituted and arrived at Marjdawa Jeep Stand where, one person ran away seeing the police leaving behind a bundle. After opening of the aforesaid bundle 40 Kg. of Ganja kept in four packets were recovered in presence of Ramchandra Mahto (PW-4) and Rajendra Prasad Sah (PW-5) for which seizure list was prepared, on query, they came to know about the appellant who managed to escape. After registeration of Purushottampur P.S. Case No.21 of 2009 the investigation was entrusted to one of the member of the raiding team, namely, Mahendra Narrayan Paswan, ASI, who after concluding the same submitted charge sheet. The trial commenced and concluded by way of recording of conviction and sentence by the learned trial court hence this appeal. 3. The defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is of complete denial of occurrence as well as false implication. However, neither any DW, nor an exhibit has been brought up on record. 4. From the lower court, it is evident that altogether six PWs have been examined, out of whom, PW-1 is informant, Harihar Prasad Singh, PW-2 Bijli Yadav, PW-3 Awadhesh Ram are the chowkidar who claimed themselves to be member of raiding party, PW-4 Ramchandra Mahto and PW-5 Rajendra Prasad Sah are the seizure list witnesses who, though admitted their presence on the seizure list, did not support the factum of recovery and on account thereof were declared hostile. PW-6, apart from the members of the raiding party happens to be the Investigating Authority. The prosecution had also exhibited seizure list Ext.-1, self-statement of PW-1, Ext.-2, Formal FIR Ext.-3, Signature of seizure list witnesses Ext.-4, 4/1, FSL report Ext.-5. 5. Before coming to the factual aspect, it is evident from Ext.-5, the FSL report that the sample so produced and tested happens to be Ganja. The record also speaks that the sample was transmitted vide Memo No.1744 dated 24.07.2009 by Chowkidar-1/4, Naresh Hajra but the same was received at the office of FSL on 22.09.2009. Aforesaid, Chowkidar, Naresh Hajra has not been examined nor the I.O., PW-6 had stated anything on that very score but, there also happens to be fault at the part of appellant by not cross-examining PW-6 on that very score. 6. The evidence of PW-4, PW-5 admitting their presence upon seizure list and by way of subsequent event denying the factum of recovery of Ganja in their presence is not going to dent upon the case of the prosecution because of the fact that the aforesaid seizure list was prepared with regard to recovery of Ganja which is found explicity from the evidence of PW-1 as well as PW-6 who have had consistently deposed on that very score without having shut off. Therefore, recovery of Ganja is also found out of controversy. 7. Now coming to adjudging the conduct of the prosecution, first of all application of Section 42 of the NDPS Act is found flouted. As per Section 42(2) of the NDPS Act, it happens to be mandate of law that even within 72 hours of the search, seizure, arrest the matter is to be reported to the just superior officer. In this case neither PW-1 nor PW-6 had divulged compliance of Section 42(2) of the NDPS Act. 8. It is further evident from the evidence of PW-1, PW-2, PW-3 and PW-6 that after seizure of 40 Kg. of Ganja kept in a bag, they took control thereof, prepared the seizure list, recorded own fardbeyan and then brought the Ganja at the P.S. None of the PWs had disclosed that Ganja was sealed by the PW-1 after taking out sample nor PW-6 had stated that he was handed over charge of Ganja during course of investigation. of Ganja kept in a bag, they took control thereof, prepared the seizure list, recorded own fardbeyan and then brought the Ganja at the P.S. None of the PWs had disclosed that Ganja was sealed by the PW-1 after taking out sample nor PW-6 had stated that he was handed over charge of Ganja during course of investigation. Neither PW-1 nor PW-6 had stated process of sampling apart from the fact that neither material exhibit has been produced during course of trial nor the sample. It is also evident from the lower court record that destruction has also not been pleaded nor destruction report has been made an exhibit of the record in terms of Section 52(A). 9. Apart from this, it is an admitted fact that appellant was not arrested at the spot. It is also an admitted fact that he was not arrested during course of investigation. As per evidence of PW-6, the Investigating Officer, the appellant had surrendered after three months from the alleged date of occurrence before the court. From the evidence of the PWs, it is evident that appellant was never put on T.I. parade. They came across name of appellant from the persons assembled since before at the Marjdawa Jeep Stand whose names have not been disclosed by the witnesses during course of evidence and on account thereof the source of name of appellant suffers from vagueness. However, during course of deposition before the court all the witnesses had claimed identification. Even accepting, it happens to be identification before the court for the first time and its relevance has to be adjudged in the background of the fact that all the witnesses have stated that they have seen the person fleeing therefrom from behind. 10. Cumulative effect, in the aforesaid background happens to be that prosecution has fallen victim of its own lapses. In Karnail Singh Vs. State of Haryana reported in 2009 CR.L.J. 4299 the constitution Bench of the Hon’ble Apex Court has taken into consideration the effect on account of non-compliance of Section 42(2) of the NDPS Act and concluded in under para-17 as follows:— “17. In conclusion, what is to be noticed is 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 Section 42(1) and 42(2) need not be fulfilled at all. In conclusion, what is to be noticed is 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 Section 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 concerned Register 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 of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of 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 a copy of such information to the official superior forthwith, may not be treated as violation of 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 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.” 11. Consequent thereupon, the judgment of conviction and sentence recorded by the learned trial court happens to be contrary to spirit of law and on account thereof, did not justify its prevalence. Hence, set aside. Appeal is allowed. Appellant is under custody hence is directed to be released forthwith if not wanted in any other case.