JUDGMENT U.C. Dhyani, J. (Oral) On the basis of recovery memo dated 13.05.1999, whereby 400 gms. of Charas was found from the possession of the accused-appellant, a chik FIR was lodged against the accused-appellant on 14.05.1999, at police station, Ranikhat in respect of offence punishable under Section 18 / 20 Narcotic Drugs and Psychotropic Substances Act, 1985 (for short N.D.P.S. Act), Section 60/72 Excise Act and Sections 3 / 181 / 39 / 66 / 192 / 206 Motor Vehicles Act. The incident allegedly took place on 13.05.1999, at 08:35 P.M. The distance between the place of incident and the police station concerned was 3 kilometers and, hence there appears to be no delay in lodging the FIR. 2. Prosecution story, in brief, is that on 13.05.1999, when J.C. Pathak, S.O., P.S. Ranikhet alongwith Head Constable Laxman Singh and other police personnel were on patrol duty, an informer gave information to the S.O. that a Canter (small truck) bearing registration no. UP 01 / 2576 carrying illicit country made liquor is coming from Haldwani. Believing on the said information, S.O. tried to find out witnesses from public, but no one was available at that point of time. Police party waited for the said truck. At 08:35 P.M., said Canter was seen approaching. Police party asked the driver of the Canter to stop the vehicle. One of the accused (present appellant) was apprehended at 08:35 P.M. while the other succeeded in making his escape good. Apprehended person disclosed his name as Gurumukh Singh. He was given option of being searched before a Gazetted Officer or a Magistrate, but he gave his consent to be searched by the police personnel. On making search, 400 gms. of Charas, kept in a newspaper and wrapped in big polythene, which the accused was holding in his hand, was recovered. 73 plastic bags containing illicit country made liquor were also found from the Canter. The recovered Charas was sealed and the liquor was also taken in possession by the police. A joint recovery memo thereof was prepared by the S.O. It was signed by Constable witness, a copy was given to the accused. Reason for arrest was disclosed to the accused and he was taken into custody. On the basis of recovery memo (Ext. Ka-2), case crime no. 159 of 1999 was registered under Section 18 / 20 N.D.P.S. Act; one another case crime no. Reason for arrest was disclosed to the accused and he was taken into custody. On the basis of recovery memo (Ext. Ka-2), case crime no. 159 of 1999 was registered under Section 18 / 20 N.D.P.S. Act; one another case crime no. 158 / 1999 was registered under Section 60 / 72 Excise Act and yet another case crime no. 160 of 1999 under Sections 3 / 181 / 39 / 66 / 192 / 206 Motor Vehicles Act was registered against the accused. Investigation of the case was entrusted to Rakesh Chandra Thapliyal, S.O., Someshwar, who visited the site; prepared site plan (Ext. Ka-4); sent the sample of recovered Charas for chemical examination, report of which is Ext. Ka-5; recorded the statements of the witnesses and after completion of investigation, submitted charge sheet (Ext. Ka-6) against the accused-appellant under Section 18 / 20 N.D.P.S. Act. Separate charge sheets might have been submitted against the accused in respect of offences punishable under Excise Act and Motor Vehicles Act. 3. When the trial began and prosecution opened it’s case, charge for the offence punishable under Section 20(b) read with Section 22 of N.D.P.S. Act was framed against the accused, who pleaded not guilty and claimed trial. 4. PW1 S.O. J.C. Pathak and PW2 Head Constable Laxman Singh were examined on behalf of the prosecution. CW1 Excise Inspector Krishna Dayal was examined as court witness. 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 20(b)(ii)(B) of N.D.P.S. Act, vide judgment and order dated 27.12.2003. While convicting the accused guilty of such offence, he was sentenced to undergo rigorous imprisonment for five years alongwith a fine of Rs. 50,000/-, in default of payment of fine, convict was directed to further undergo rigorous imprisonment for one year. Being aggrieved against his conviction and sentence, present criminal appeal has been preferred by the convict-appellant. 5. PW1 got prepared joint recovery memo of 400 gms. of Charas, recovered from the possession of the accused-appellant and 14,600 pouches of country made liquor recovered from the Canter. Said recovery memo was signed by PW1. Being aggrieved against his conviction and sentence, present criminal appeal has been preferred by the convict-appellant. 5. PW1 got prepared joint recovery memo of 400 gms. of Charas, recovered from the possession of the accused-appellant and 14,600 pouches of country made liquor recovered from the Canter. Said recovery memo was signed by PW1. In the cross-examination, PW1 denied the suggestion that the accused was the son of owner of the truck and had come to the police station to enquire about the same, where he was falsely implicated in the case. 6. PW2 also gave the statement which was given by PW1 and supported PW1 on almost all material points. In his cross-examination, PW2 deposed that he did not give the statement to I.O. that the accused was apprehended from the driving seat of the truck. PW2 stated that the truck in question was chased to some distance before making the arrest of the accused. According to PW2, 20-30 gms. of Charas was taken out of the polythene bag for taking sample and the sample was separately sealed. 5 7. CW1 was posted as Excise Inspector at Ranikhet on the relevant date. He was examined as court witness. According to him, when he was returning home, at Masi Tiraha, he found S.O., P.S. Ranikhet alongwith other police personnel. On asking, CW1 was told that the Canter was found carrying liquor without permit. He further deposed that an orange coloured polythene bag was recovered by the police from which Charas was recovered. CW1 identified his signatures on recovery memo Ext. Ka-2. He, however, deposed that recovered Charas and liquor were neither sealed in his presence at the spot nor at the police station. CW1 has corroborated the evidence of PW1 and PW2 on all other material aspects. 8. Learned counsel for the appellant contended that present criminal appeal is squarely covered by the judgment and order rendered by this Court on 4th March 2014, in Criminal Appeal No. 306 of 2002, Sher Singh vs State of Uttaranchal. A few paragraphs of said judgment and order are being gainfully reproduced here-in-below for reference: “(13) This Court has given an account of almost complete examination-in-chief and detailed cross-examination of the prosecution witnesses in the foregoing paragraphs of this judgment. A few paragraphs of said judgment and order are being gainfully reproduced here-in-below for reference: “(13) This Court has given an account of almost complete examination-in-chief and detailed cross-examination of the prosecution witnesses in the foregoing paragraphs of this judgment. The Investigating Officer ought to have obtained the report of F.S.L. first and then only (he) should have submitted the charge-sheet, although the F.S.L. has given the report in the affirmative that the representative sample sent to it was cannabis. The police personnel were required to procure the attendance of any public witness in the particular circumstances of this case (ref: bangles shop). So far as weighment of the contraband is concerned, it was obligatory on the part of the police personnel to have weighed the contraband. They mentioned the weight of the contraband tentatively. The Notification appended to NDPS Act indicates that upto 100 gms. of cannabis is in the small quantity and the commercial quantity starts from one kilogram. Accused was found in possession of 500 gms. of cannabis. (14) It is argued by learned counsel for the appellant that the F.S.L. has indicated that 450 gms. of charas (cannabis) was sent to F.S.L. Learned counsel for the appellant argued that if the entire charas was sent to F.S.L., what, then, was kept by the police personnel in malkhana and produced before the court below? It has come in the evidence that the cannabis was not weighed. It’s weight of 500 gms. was only tentative. It is just possible that the recovered cannabis was 450 gms. only and, therefore, neither the same was kept in malkhana, nor produced before the trial court. Even if anything was produced before the trial court, the same did not pertain to this case. (15) There appears to be some sense in the contention of learned counsel for the appellant. Although Mat. Ext. 1 was proved by PW1, who said that some pieces of cannabis were kept in a polythene bag, but it is doubtful whether Mat. Ext. 1 pertain to the case property, a representative sample of which was sent to F.S.L., Agra, and a report in respect thereof was sent to the Sessions Judge, Almora, vide report dated 18.08.1999. It is admitted by PW1, as also by other police witnesses, that the contraband was not weighed at the time of its recovery from the possession of the accused. It is admitted by PW1, as also by other police witnesses, that the contraband was not weighed at the time of its recovery from the possession of the accused. The exact weight of the contraband was, therefore, not confirmed. It could not be said that the same was essentially 500 gms. in weight. It is just possible that the same could be 450 gms. and when the entire contraband i.e. 450 gms. was sent to F.S.L., what remained with the police in malkhana and what was presented before the trial court, which was exhibited as Mat. Ext. 1? This was the biggest lacuna in the prosecution story. (16) Such lacuna was further highlighted by the statement of PW5 (I.O.), who stated in no unequivocal terms that he did not see the recovered contraband till date. He also admitted that the representative sample was not received by him alongwith the report of F.S.L. dated 18.08.1999. PW5 did not think it proper to visit the place of recovery when the part investigation was entrusted to him. It appears that the charge-sheet against the accused was submitted in lackadaisical manner without having obtained the report of F.S.L. (17) It is surprising to note that the entire contraband, alleged to have been recovered from the possession of the accused, was sent to F.S.L. for chemical examination. Nothing remained with the police personnel. Nothing was kept in the malkhana and it appears that some other case property was produced before the court below as Mat. Ext. 1. This Court is unable to reconcile with such a situation. Even if the other infirmities, a brief discussion of which has been given in the foregoing paragraphs of this judgment, might have been explained by the prosecution, but this lacuna on the part of the prosecution is irreconcilable. (18) It was held in Sarju alias Ramu vs State of U.P., 2009 (5) Supreme 730 , that since the provisions of the Narcotic Drugs and Psychotropic Substances Act 1985, Act are harsh in nature, therefore, the procedural safeguards contained therein must scrupulously be complied with. (19) There is yet another aspect of the matter. In the instant case, no information was given to the immediate official superior that 500 gms. of contraband was recovered from the possession of the accused. It was incumbent upon the police personnel to have informed the immediate official superior of such recovery. (19) There is yet another aspect of the matter. In the instant case, no information was given to the immediate official superior that 500 gms. of contraband was recovered from the possession of the accused. It was incumbent upon the police personnel to have informed the immediate official superior of such recovery. No document has been brought on record to show that the immediate official superior was informed of the recovery of contraband and subsequent arrest of the accused. Learned trial court, therefore, committed a manifest error of law in holding that the information to the immediate official superior was not necessary. Although PW3 stated in his cross-examination that intimation to the immediate official superior was given after the arrest of the accused, but no such document has been brought on record by the prosecution. PW5 admitted that no such information was given to the immediate official superior before the arrest of the accused. (20) The alleged recovery from the possession of accused-appellant, therefore, becomes doubtful. In such a situation, will it not be proper to grant the accused benefit of doubt?” 9. Learned counsel for the appellant also placed reliance on the judgment and order passed by this Court on 26 May 2015, in Criminal Appeal no. 201 of 2003, Madan Lal and State of Uttaranchal* and submitted that the present criminal appeal is also squarely covered by said judgment and order. 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. It will also be useful to reproduce herein the significant 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.” 12. Learned counsel for the appellant aruged that in the instant case, report of the Forensic Science Laboratory indicated that 400 gms. of Charas (cannabis) was sent to FSL. It has come on record that total 400 gms. of Charas was recovered from the possession of accused-appellant at the time of his arrest. Learned counsel for the appellant aruged that in the instant case, report of the Forensic Science Laboratory indicated that 400 gms. of Charas (cannabis) was sent to FSL. It has come on record that total 400 gms. of Charas was recovered from the possession of accused-appellant at the time of his arrest. It is contended by learned counsel for the appellant that if the whole Charas was sent to the FSL, then what was produced in the Court, which was proved by PW1 as Mat. Ext. 1? In other words, what substance was then kept by the police personnel in malkhana and what was produced before the court below. Thus the recovery itself becomes doubtful. 13. The case of the accused-appellant is squarely covered by the aforesaid judgments and orders passed by this Court, as also the 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. Conviction and sentence awarded to 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 are 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.