JUDGMENT U.C. Dhyani, J.(Oral) On the basis of recovery memo dated 03.08.2001, whereby 3 Kg. of poppy straw was found from the possession of the accused-appellant, a chik FIR was lodged on 03.08.2001, at 09:55 P.M, at police station, Nanakmatta, District Udham Singh Nagar in respect of offence punishable under Section 15/18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N.D.P.S. Act). The incident allegedly took place on 03.08.2001, at 08:05 P.M., and the FIR was lodged after about two hours. The distance between the place of incident and the police station is 1 Km. and, hence there appears no delay in lodging the FIR. 2.Prosecution story is that on 03.08.2001, when PW1 Constable Chani Ram and PW2 S.I. Virendra Singh Raghav were on patrolling duty and reached near Tapeda Trisection, they found a person carrying a bag. On being intercepted, accused started fleeing away. He was apprehended near Baawli Sahab ki Gumti. Accused disclosed his name as Madan Lal, resident of District Pilibhit. When the police personnel enquired from him as to why he was running away, he said that he was carrying poppy straw in the bag. When the police personnel told him to be searched by a Gazetted officer or a Magistrate, he volunteered to be searched by the police personnel alone. Accused also gave a consent letter in writing. When the search of the accused was affected, poppy straw was found from a bag being carried by him. On being weighed, it was found that it was 3 Kg. poppy straw. Accused was taken into custody. Specimen sample of 200 gm. was taken. According to the police personnel, since the incident took place spontaneously and there was no habitation around, therefore, public witness/independent witness could not be procured. Recovery memo dated 03.08.2001 was prepared, which contained the signatures of the police personnel as well as the thumb impression of the accused. The recovery memo contains an endorsement that a copy of the recovery memo was supplied to the accused. 3. After completion of investigation, a charge-sheet in respect of offence punishable under Section 15/18 of the N.D.P.S. was submitted against the accused. When the trial began and prosecution opened it’s case, charge for the selfsame offence was framed against the accused, who pleaded not guilty and claimed trial. 4. 3. After completion of investigation, a charge-sheet in respect of offence punishable under Section 15/18 of the N.D.P.S. was submitted against the accused. When the trial began and prosecution opened it’s case, charge for the selfsame offence was framed against the accused, who pleaded not guilty and claimed trial. 4. PW1 Constable Chani Ram, PW2 S.I. Virendra Singh Raghal and PW3 S.O. Bhagat Singh Rawat were examined on behalf of the prosecution. DW1 Khyali Ram was examined on behalf of the defence. Incriminating evidence was put to the accused under Section 313 of Cr.P.C., in reply to which he said that he was falsely implicated in the case. After considering the evidence on record, learned trial court found the accused guilty of the offence punishable under Section 15/18 N.D.P.S. Act, vide judgment and order dated 04.07.2013. While holding the accused-appellant guilty of such offence, he was directed to undergo rigorous imprisonment for three years alongwith a fine of Rs. 2,000/-. Being aggrieved against his conviction and sentence, present criminal appeal has been preferred by the convict-appellant. 5. PW1, PW2 and PW3 have supported the prosecution story. PW1 and PW2 are the witnesses of fact, who have supported the version of prosecution in their examination-in-chief. PW3 is the Investigation Officer, who conducted the investigation of the case at some length, and after being satisfied that the accused has committed the offence, submitted chargesheet against him. PW3 also proved recovery memo and chik FIR. Earlier part of the investigation was conducted by A.S.I. Ramphal Singh (not examined). The report of Forensic Science Laboratory has also been brought on record. 6.The examination-in-chief of PW1 and PW2 is almost the verbatim reproduction of the contents of the recovery memo, a brief description of which has already been given by this Court in the inaugural paragraphs of this judgment. The Court need not reproduce the same in order to avoid repetition. 7. Whereas it is mentioned in the recovery memo that the poppy straw allegedly recovered from the possession of the appellant was weighed, it has come in the examination-in-chief of PW1, that the weight of the poppy straw was mentioned on the basis of guess work. A specimen sample of 200 gm. was taken (to be sent to F.S.L.). PW1 has admitted in the cross-examination that the cloth in which the poppy straw was wrapped did not contain the signature/thumb impression of accused-appellant. A specimen sample of 200 gm. was taken (to be sent to F.S.L.). PW1 has admitted in the cross-examination that the cloth in which the poppy straw was wrapped did not contain the signature/thumb impression of accused-appellant. 8.PW2 has admitted in the cross-examination that public witness could not be procured as the incident took place spontaneously. Information regarding the same was provided to the higher police officials on R.T. set, but the fact remains that the accused-appellant was not searched either in presence of a Gazetted Officer or a Magistrate. PW2 also admitted in the cross-examination that no effort was made to procure public witness, although the people lived within the locality, which is at a distance of 200-250 paces. The case property which was produced in the Court did not contain the signatures / thumb impression of the police officials/accused. 9. DW1 has stated that the accused-appellant had gone to meet one Ram Prasad at Village Rampura, which is at a distance of 1½ km. from the house of the appellant. It is not necessary to discuss the evidence of DW1, in as much as the same neither helps the prosecution nor the defence. 10.It will be worthwhile to mention the provisions of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985, here-in-below: “50. Conditions under which search of persons shall be conducted. – (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” 11.There is no compliance of Section 52A and Section 55 of the N.D.P.S. either. 12.It will be useful to reproduce herein the following observations made by Division Bench of this Court in Criminal Jail Appeal no. 44 of 2011, titled as Raju alias Bablu vs State of Uttarakhand. The same reads as under: “In the instant case, the search and seizure was conducted by the officer-in-charge of the Police Station in a public place. Nothing was found on the person of the appellant. He was, however, carrying a bag, which, according to the search report, contained 12 Kgs. Charas. Appellant was produced before the Magistrate in terms of the direction contained in Section 52 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’), but the contraband was not disposed of in accordance with the provisions of Section 52 of the Act, as there is no evidence of affixation of seal on the seized article as is the mandate of Section 55 of the Act. Allegedly, samples were taken from the place of seizure. There is no evidence, apart from the assertion made by the officers who were part of the seizing group, that the samples were sealed. The FSL report produced do not suggest that sealed samples were received. The forwarding letter also does not suggest that sealed samples having distinctive marks were sent. Allegedly, samples were taken from the place of seizure. There is no evidence, apart from the assertion made by the officers who were part of the seizing group, that the samples were sealed. The FSL report produced do not suggest that sealed samples were received. The forwarding letter also does not suggest that sealed samples having distinctive marks were sent. It talks about Survey Mohar, but who has affixed the same under whose signature; nothing was indicated. How the samples drawn from the public place were brought before the Magistrate and how the Magistrate sealed the same, no such evidence to that effect has been given. Be that as it may, the article seized was not weighed at any point of time. There is no material on record, which could suggest that the materials, as were seized at the time of seizure, were the selfsame materials, which were produced in Court. There is, therefore, no evidence that the materials, which were produced in Court, were the materials which were seized from the appellant. At the same time, there is no evidence that samples were drawn from the materials which were seized from the appellant. Furthermore, assuming the materials seized were produced in Court and samples drawn therefrom were sent for examination and were found to be Charas but, in the absence of weighment of the materials, there is no just reason to come to the conclusion that commercial quantity was involved. Furthermore, even according to the officers, who were members of the seizing party and who deposed before the Court, they had drawn samples without weighing. According to them, it was around 100 grams. 2. We, accordingly, allow the appeal, set aside the judgment and order under appeal. The appellant is in Jail. He be released forthwith unless required to be detained in connection with some other case. 3. Let a copy of this judgment be sent to the court below alongwith lower court records for compliance.” 13. The case of the accused-appellant is squarely covered by the aforesaid judgment and order of the Division Bench of this Court. 14. This Court need not say anything further. Suffice will it be to say that the prosecution has not been able to prove the case against the accused-appellant beyond a shadow of reasonable doubt. 15. Criminal appeal is, therefore, allowed. 14. This Court need not say anything further. Suffice will it be to say that the prosecution has not been able to prove the case against the accused-appellant beyond a shadow of reasonable doubt. 15. Criminal appeal is, therefore, allowed. Conviction and sentence awarded against the appellant by the court below is hereby set aside. He is acquitted of the charge framed against him. He is on bail. His bail bonds are cancelled and sureties stand discharged. He need not surrender. 16. Let a copy of this judgment alongwith the lower court record be sent to the Court below for compliance.