JUDGMENT : ADITYA KUMAR TRIVEDI, J.:–Criminal Appeal (SJ) No.1307 of 2011 wherein Ganesh Yadav happens to be appellant, Criminal Appeal (SJ) No.1252 of 2011 wherein Sanjeev @ Sanjay Mandal happens to be appellant, Criminal Appeal (SJ) No.1302 of 2011 wherein Md. Ishaque happens to be appellant and Criminal Appeal (SJ) No.2 of 2012 wherein Md. Mahtab happens to be appellant, commonly originate from judgment of conviction dated 20.10.2011 convicting all the appellants including others guilty for an offence punishable under Sections 20(B) of the NDPS Act and sentence dated 24.10.2011 whereby each of them has been directed to undergo RI for 10 years as well as also slapped with fine appertaining to Rs.1 Lac in default thereof, to undergo RI for three years additionally by the 1st Additional Sessions Judge-cum-Special Judge, N.D.P.S, Madhepura in Special Case No. 2/2010 arising out of G.R. Case No.945/2010 and accordingly, have been heard together and are being disposed of by a common judgment. 2. Informant, Ajay Kumar (PW 6), Officer-in-charge of Madhepura P.S. recorded his self statement on 21.06.2010 at about 8:50 a.m. at Tekthi Mor disclosing therein that on the same day at about 7.30 a.m. he received confidential information regarding passing of TATA ACE passenger vehicle occupied by smugglers carrying Ganja towards Mathahi Bazar having no registration number affixed thereupon. After recording Sanha, a raiding party was constituted comprising of ASI, Ranjay Kumar Singh, Constables, Bipin Kumar, Amit Kumar, Promod Paswan along with STF personnel. The Incharge of Mathahi police outpost, B.P. Singh was also instructed to arrive at the destination. They reached at Tekthi Mor at about 8:05 a.m. and began to check the vehicle. At about 8:25 a.m. they intercepted the concerned TATA ACE vehicle having been occupied by so many persons. In presence of Rabo Yadav and Balram Yadav, the vehicle was searched and during course thereof, two packets of Ganja were found in a yellow colour bag. Furthermore, 12 packets of bag was also found duly concealed beneath the seat and after weighing of the packets total 117 K.Gs of Ganja was seized thereof. The occupants of the vehicle were interrogated who disclosed themselves as Md. Ishaque, a driver, Md. Furthermore, 12 packets of bag was also found duly concealed beneath the seat and after weighing of the packets total 117 K.Gs of Ganja was seized thereof. The occupants of the vehicle were interrogated who disclosed themselves as Md. Ishaque, a driver, Md. Mahtab, Nawal Kishore Singh, Sanjeev @ Sanjay Mandal and Ganesh Yadav who failed to account possession of Ganja and were accordingly arrested and on account thereof, Madhepura P.S. Case No. 250 of 2010 was registered under Section 20 of NDPS Act. During course of investigation Sanjeev @ Sanjay Mandal made an extra judicial confessional statement wherein, he had also involved his maternal uncle, Domi Mandal whose house was also searched and Ganja was recovered therefrom, although, he was not present in his house at the time of conduction of raid. 3. After registration, the investigation commenced followed with submission of charge-sheet and on account thereof, appellants were put on trial, met with conviction and sentence, hence these appeals. 4. The defence case, as is evident from the mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is of complete denial. It has also been submitted that neither Md. Ishaque was a driver nor the appellants were occupants of the vehicle rather being outsiders, they were suspected and involved in this case. However, neither any DW nor any kind of document has been exhibited. 5. In order to prove its case, prosecution had examined altogether 10 PWs. Out of whom, PW-1 is Ranjay Kumar Singh, PW-2 is Bipin Kumar, PW-3 is Balram Prasad Yadav, PW-4 is Brij Banshi Prasad Singh, PW-5 is Promod Paswan, PW-6 is Ajay Kumar, PW-7 is Rabo Yadav, PW-8 is Amit Kumar Pathak, PW-9 is Dinesh Pd. Singh and PW-10 is Chandra Kant Jha. Side by side also exhibited Ext-1 Series, signature of seizure list witnesses, Ext-2, Formal FIR, Ext-3, self statement, Ext-4, extra judicial confessional statement, Ext-5 seizure list, Ext-6, FSL report. 6. Learned counsel for the appellants during course of challenging the judgment impugned submitted that the learned trial court did not consider the relevant provisions of law which is mandatory to be followed with during course of investigation. 6. Learned counsel for the appellants during course of challenging the judgment impugned submitted that the learned trial court did not consider the relevant provisions of law which is mandatory to be followed with during course of investigation. The first and foremost ground is that from the self statement of informant PW-6, it is evident that there happens to be complete silence with regard to information being conveyed to the just superior officer and in likewise manner after registration of the case in terms of Section 57 of NDPS Act. It has also been submitted that sampling was not at all made as required under NDPS Act nor the same was transmitted to FSL immediately. It has also been submitted that the so alleged Ganja was never sealed. While examination of PW-6, the informant was going on, Ganja as material exhibit has been produced before the Court and from the perusal of the bags wherein it was kept, no seal was found thereupon. There was no description available to connect the aforesaid Ganja with the instant case. Hence, it could safely be inferred that there happens to be serious lapses on the part of the prosecution on this very score discrediting the finding recorded by the learned trial court. 7. Now coming to the ocular evidence, it has been submitted that there happens to be inconsistency amongst evidence of the PWs because of the fact that right from self statement, PW-6 had claimed that he was leading the team which is found completely controverted by PW-1 who had claimed that he was leading the team and on that very score, is found supported with the evidence of PW-5, a Sepoy. The aforesaid inconsistency will play vital role in deciding the case because of the fact that whenever there is apprehension by the authorities, otherwise than Officer-in-charge, then in that event, the seized materials are to be produced before the Officer-in-charge in whose presence sampling is to be carried out. Furthermore, assertion of the informant with regard to recovery as well as apprehension of appellant will also be adversely found affected. 8. It has also been submitted that PW-3, Balram Pd. Yadav and PW-7 Rabo Yadav, seizure list witness, did not support the case of the prosecution as a result of which, they were declared hostile. Furthermore, assertion of the informant with regard to recovery as well as apprehension of appellant will also be adversely found affected. 8. It has also been submitted that PW-3, Balram Pd. Yadav and PW-7 Rabo Yadav, seizure list witness, did not support the case of the prosecution as a result of which, they were declared hostile. Moreover, even accepting the version of the prosecution there was no recovery from the conscious possession of the appellants rather recovery was from the bags kept beneath the seat and for that prosecution was under obligation to prove that aforesaid bags were kept within full knowledge of the appellants wherein they failed. The vehicle was a public carrier. Therefore, appellants are not at all accountable. 9. It has also been submitted that Ext-4, extra judicial confessional statement of appellant, Sanjeev @ Sanjay Mandal has got no relevancy apart from the fact that the same happens to be inadmissible in terms of Section 25 of the Evidence Act. Utmost, it could be relating to Domi Yadav from whose house 25 Kgs of Ganja was recovered but having not on record as an accused, the aforesaid extra judicial confessional statement leading to recovery is not at all found admissible so far instant prosecution is concerned. Hence, it has been submitted that the judgment of conviction and sentence recorded by the learned trial court is non sustainable. 10. On the other hand, learned APP submitted that by production of material exhibit in Court, recovery of Ganja is found proved. Because of the fact that appellants have not challenged during cross-examination of PW-6 with material exhibit was not Ganja, as such, neither the recovery nor the sampling nay the FSL report Ext-6 could be brought under challenge. In likewise manner, it has also been submitted that production of seized Ganja before the Court also made an impact, non supporting of search and seizure by the witnesses irrelevant, consequent thereupon, appellants are not at all found to have any support in their favour. It has also been submitted that slight variance in the evidence of the PWs is not going to dent upon the prosecution version because of the fact that neither seizure of vehicle was challenged nor the material exhibit, side by side having Ext-2 as well as Ext-4 put presence of PW-6, the informant at the relevant time at relevant place. It has also been submitted that slight variance in the evidence of the PWs is not going to dent upon the prosecution version because of the fact that neither seizure of vehicle was challenged nor the material exhibit, side by side having Ext-2 as well as Ext-4 put presence of PW-6, the informant at the relevant time at relevant place. Then it has been submitted that though there happens to be absence of disclosure in the self statement of PW-6 who also during course of examination-in-chief failed to disclose but the defence during cross-examination himself tested conduct of PW-6 who had categorically stated that he had informed the Superintendent of Police on his mobile as well as had also disclosed the mobile number. So submitted that the defence by its own conduct got the lacuna so persisting duly filled up and on account thereof, the judgment of conviction and sentence is fit to be confirmed. 11. NDPS Act happens to be a technical one governing its own procedure, however, permitting application of Cr.P.C at a relevant stage. Because of the fact that there is presence of presumption against the accused subject to rebuttal coupled with stringent mode of punishment on account thereof, during course of search and seizure certain mandatory provisions have been prescribed under Chapter-V of the NDPS Act, which, the consistent judicial pronouncement directs to be followed in strict sense and having failure on the part of the prosecution in getting the relevant mandatory provisions properly complied with, lent safe passage to the accused by way of acquittal. 12. Now coming to the facts of the instant case, it is apparent that from TATA ACE altogether 117 Kilograms of Ganja have been seized while concealed beneath seat having properly wrapped and kept in a bag. In the self statement of informant- Ext-3, it is apparent that there is no disclosure with regard to informing the just superior officer. Informant PW-6, during course of his examination-in-chief had not disclosed that information with regard to carriage of Ganja by TATA ACE vehicle was ever informed to just superior police official. During cross-examination, he had stated that he had informed the superior officer regarding receipt of confidential information. He had informed by his Mobile No. 9431822774 to Superintendent of Police over his Mobile No. 9431822997. During cross-examination, he had stated that he had informed the superior officer regarding receipt of confidential information. He had informed by his Mobile No. 9431822774 to Superintendent of Police over his Mobile No. 9431822997. Prosecution had not produced any print out to suggest that any sort of information was ever made by the informant PW-6 to the Superintendent of Police nor the Investigating Officer of the case, PW-9 had stated like so. However, he had not spoken that after search, seizure and apprehension of accused, again information was given to just superior police officer. 13. The aforesaid deficiency is further found in an ineffaceable form when the evidence of PW-6, the informant is read together with the evidence of PW-1. According to PW-6, he was the person who had led the team, intercepted the vehicle, inspected the vehicle, recovered Ganja, prepared seizure list and then recorded his own self statement. According to PW 1, S.I. he had led the team, stopped the vehicle, checked the vehicle, seized Ganja, arrested the accused and at that very moment Officer-in-charge had arrived. During cross-examination also, he had stuck over his assertion to be the leader. During cross-examination, he had further divulged that after apprehending the accused they were searched out, carried to P.S. and informed the Officer-in-charge. Superintendent of Police was also informed. 14. PW-2, S.I. Trainee had stated that he along with other police personnel led with Officer-in-charge of Madhepura P.S. proceeded for conduction of raid and then narrated the event regarding search, seizure & apprehension of accused. 15. PW-4, is the ASI who was posted at Mithai O.P. He had also shown presence of informant along with other police personnel who had conducted search and seizure as well as apprehended the accused. 16. PW-5 is the Constable who had stated that as per direction of the Officer-in-charge, he along with other police personnel namely, Sanjay Singh, Bipin Kumar had gone for conduction of raid in which they had seized the vehicle at Mitahi Mor and then search and seizure was effected on account of recovery of Ganja as well as apprehension of accused. However, had not shown presence of PW 6, the informant. 17. However, had not shown presence of PW 6, the informant. 17. PW-8 is another Constable who had made presence of Officer-in-charge, Madhepura P.S. along with Ranjan Kumar, Bipin Kumar and Pramod Paswan including he himself to be one of the members of raiding party and the raid was conducted followed with recovery of Ganja as well as apprehension of accused. Therefore, after proper scrutiny of the evidence available on the record, it is evident that PW-1 and PW-5 have not shown PW-6 to be present at the time of search and seizure being leader of raiding team. While PW-2, PW-4, PW-6 and PW-8 have spoken with regard to presence of PW-6 as a leader of the raiding party. 18. As per evidence of PW-6, during his examination-in-chief, he had not spoken with regard to preparation of sample, sealing of 13 packets of Ganja handing over Ganja to the Investigating Officer or depositing the same at Malkhana. However, he during cross-examination, had stated that he had not sealed Ganja at the place of occurrence because of its bulk quantity. He had further stated that he had not prepared sample separately from seized Ganja. He had not affixed seal over Ganja. However, again said that after recovery of Ganja, he sealed them and registered FIR. He had further stated that Ganja was kept in Malkhana after having it sealed. 19. PW-1 had not spoken regarding sampling, sealing and in likewise manner, PW-2, PW-4, PW-5 and PW-8 happen to be. PW-9 is Investigating Officer. During his examination-in-chief, he had stated that arrested accused were kept in Thana lockup while the seized article was kept in Malkhana. He had further disclosed that on 16.09.2010, he had sent the seized Ganja for chemical examination. During cross-examination, he had stated that he had produced sample of seized Ganja before the Magistrate. He had further stated that he is not remembering whether any identification mark was put over seized Ganja which was in sealed condition. Therefore, from the consistent evidence of the witnesses, it is evident that prosecution is not fair so far process of sealing as well as sampling is concerned. 20. PW 6 after having been cross-examined was recalled for proving production of material exhibit, who, during course of cross-examination had stated that only one bag is found tied over. Strings being gnawed by the rats. 20. PW 6 after having been cross-examined was recalled for proving production of material exhibit, who, during course of cross-examination had stated that only one bag is found tied over. Strings being gnawed by the rats. Some packets are torn on account of gnawed by rats. Bags are not sealed. Therefore, from the evidence of PW-6, it is apparent that the claim of the prosecution that the seized Ganja was sealed, is not at all found corroborated with the physical feature of the material exhibit apart from the fact that there was complete absence of identifying mark over the material exhibit. 21. Thus, it is also being perceived that apart from non compliance of Section 42 (2) of the NDPS ACT as well as Section 57 of the NDPS Act, there also happens to be violation of Section 55 of the NDPS Act whereunder sampling of Ganja at an initial stage is to be done. 22. In the aforesaid background, evidences of PW-3 and PW-7, the seizure list witnesses should also be considered whereunder they disowned the recovery having been in their possession. As per PW-10, the sample which was sent for chemical examination happens to be Ganja is not going to improve the case of the prosecution in the background of violation of mandatory requirement of law as well as lack of proper connectivity. 23. In the case of Karnal Singh Vs. State of Haryana reported in 2009 CR.L.J. 4299 the Constitution Bench had concluded 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. 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. 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. 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.” 24. Thus, the judgment impugned does not justify its concurrence and on account thereof, the same is set aside. All the Appeals are allowed. 25. Since all the appellants are under custody, they are directed to be released forthwith if not wanted in any other case. ?