JUDGMENT : MEENAKSHI MADAN RAI, J. 1. Aggrieved by the Judgment and Sentence dated 30-11-2015 of the Court of the Special Judge (SADA), South Sikkim at Namchi, in Sessions Trial (SADA) Case No. 13 of 2015, which convicted both the Appellants and handed out sentence as follows:- (i) under Section 9(d) of the Sikkim Anti Drugs Act, 2006 (for short “SADA”) read with Section 34 of the Indian Penal Code, 1860 (for short “IPC”) — simple imprisonment for a period of 2 (two) years and fine of Rs.1,00,000/- (Rupees one lakh) only, each, with a default clause of imprisonment; (ii) under Rule 17(1) of the Sikkim Anti Drugs Rules, 2007 (for short “SAD Rules”) read with Section 14 of the SADA and Section 34 of the IPC — simple imprisonment for a period of 6(six) months and a fine of Rs.20,000/- (Rupees twenty thousand) only, each, with a default clause of imprisonment with the sentences of imprisonment being ordered to run concurrently, this Appeal assails both. 2. The Appellants were booked for the offence under Sections 9/14 of the SADA on 07-03-2015, consequent to them allegedly being found in possession of large quantities of controlled substances during checking by the Police at the Melli Check Post, South Sikkim, at around 1900 hours, when they were travelling in a Bolero Vehicle, bearing registration No. SK 04 J/0752 from Siliguri, West Bengal to Jorethang, South Sikkim. An FIR, was lodged by P.W.3 and registered by Melli Police Station, South Sikkim, bearing No. 5(3) 15 dated 07-03-2015. During the course of investigation, the Appellants were arrested. The controlled substances allegedly seized from them were forwarded to RFSL, Saramsa, Ranipool, East Sikkim, for Chemical Analysis and were found to contain controlled substances. On completion of investigation, charge-sheet was submitted against both Appellants under Sections 9(b)(d)/14 of SADA read with Section 177 IPC. 3. The Learned Trial Court framed charge against the Appellants and on examination of 9(nine) Prosecution Witnesses (for short “P.W.”), finding the Appellants guilty, convicted and sentenced them as detailed hereinabove. 4. Before this Court, the prayer of the Appellants was that although the Trial Court came to a finding that the case was one of “chance recovery” to the contrary, it is one based on prior information since P.W.3 had informed the Investigating Officer (for short “I.O.”) of their suspicion after they had checked M.O.XI and lodged Exhibit 1, the FIR. Before this Court, the prayer of the Appellants was that although the Trial Court came to a finding that the case was one of “chance recovery” to the contrary, it is one based on prior information since P.W.3 had informed the Investigating Officer (for short “I.O.”) of their suspicion after they had checked M.O.XI and lodged Exhibit 1, the FIR. It was thereafter that the I.O. reached the spot and made further search and seizure, therefore, the I.O. did not “stumble” upon the controlled substances to make it a chance recovery. It was further urged that the search of the Appellants was conducted by a male Constable after sunset, flouting the provision of Section 24(4) of the SADA neither was any option afforded to the Appellants to be searched either before a Gazetted Officer or Magistrate as mandated by the same Section. It was also contended that there was non-compliance of Section 30 of the SADA which contemplates a report being made by the Officer conducting search and seizure to his immediate superior within forty-eight hours of the search besides non-compliance of Sections 17(3) and 21(2) of the SADA. That, Material Objects (for short “M.O.”) were not categorically identified by the PWs. That, there are infirmities in the evidence of P.Ws 3, 5 and 6 and other glaring contradictions in the evidence of PWs 3, 5 and 1, apart from which P.W.6 appears to be a stock witness of the Prosecution and hence his evidence is unreliable. 5. Attention of this Court was also drawn to the FIR, Exhibit 1, which according to Learned Counsel was lodged before the search and seizure was carried out as evident from the time noted on Exhibit 1 the FIR, in contrast to Exhibit 5 and Exhibit 6 (the Seizure Memos) thereby making the Prosecution case suspect. He places reliance on the decision of this Court in State of Sikkim v. Jigmee Dorjee Bhutia, 2010 CRI.L.J. 1121 which referred to Pall v. State of Punjab, (1996) 1 RCR (Criminal) 802 wherein it was elucidated by the Hon'ble Punjab and Haryana High Court that there was no reasonable basis in Law to arrest the Accused prior to conducting a search in his house because at the relevant time the Accused had not committed any offence. The offence would be committed when he was found in illegal unauthorised possession of the alleged contraband articles. The offence would be committed when he was found in illegal unauthorised possession of the alleged contraband articles. The decision of the Hon'ble Delhi High Court in Kalu Ram v. State, (1999) 4 CCR 240 was also relied on by this Court in Jigmee Dorjee Bhutia. It was held therein that recording an FIR prior to alleged recovery of the contraband articles would result in shaking the foundation of the Prosecution case to an irreparable extent. 6. Reliance was placed on the decision of this Court in Crl. A. 13 of 2015 dated 16-11-2015 in the matter of Nurul Haque v. State of Sikkim while raising the argument that Vehicle Entry Register of Melli Check Post was not produced by the Prosecution inasmuch as non-production of the Register of Vehicular Movement maintained at the Melli Check Post would be a negative inference against the Prosecution in terms of Section 114(g) of the Indian Evidence Act, 1872. It is vociferously contended that apart from the arguments advanced hereinabove the Prosecution case being fraught with contradictions and anomalies is unreliable thus the impugned Judgment and Sentence be set aside. 7. Resisting the arguments placed by the Appellants, Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, for the State, submitted that the I.O. on 08-03-2015 had submitted a Report, Exhibit 8, to the Senior Superintendent of Police, South Sikkim, Namchi, in compliance of Section 30 of the SADA. Assuming that this had not been done, a three Judge Bench of the Hon'ble Apex Court in Sajan Abraham v. State of Kerala, (2001) 6 SCC 692 has observed that the Section 57 of the NDPS Act similar to Section 30 of the SADA is not mandatory in nature nor does it prejudice the Accused. That the Prosecution under this Act was instituted by the Superintendent of Police, South District and the charge-sheet was forwarded to the Court Inspector duly complying with the provision of Section 17(3) of the SADA. That as the case is of one of chance recovery, there is no necessity of complying with Section 21(2) or Section 24(3) of the SADA. In this line of argument it was contended that even if the I.O. had suspected that the ladies bags contained contraband substances, mere suspicion cannot be equated with “reason to believe”. That as the case is of one of chance recovery, there is no necessity of complying with Section 21(2) or Section 24(3) of the SADA. In this line of argument it was contended that even if the I.O. had suspected that the ladies bags contained contraband substances, mere suspicion cannot be equated with “reason to believe”. On this count, reliance was placed on State of Himachal Pradesh v. Sunil Kumar, (2014) 4 SCC 780 where the Hon'ble Supreme Court held that “Mere suspicion, even if it is “positive suspicion” or grave suspicion cannot be equated with “reason to believe”. These are two completely different concepts.” 8. That merely because a Prosecution Witness is a stock witness his evidence cannot be disbelieved, to fortify this argument reliance was placed on Nana Keshav Lagad v. State of Maharashtra, (2013) 12 SCC 721 , Govindaraju alias Govinda v. State by Sriramapuram Police Station, (2012) 4 SCC 722 and Yakub Abdul Razak Memon v. State of Maharashtra through CBI, Bombay, (2013) 13 SCC 1 9. While admitting that there are minor anomalies in the evidence of P.W.3 and P.W.7, Learned Additional Public Prosecutor submits that such minor contradictions do not affect the Prosecution case and has drawn the attention of this Court to the decision in Gurunath Donkappa Keri v. State of Karnataka, (2009) 13 SCC 34 . 10. Arguing on Section 24 of the SADA while drawing a parallel with Section 50 of the NDPS Act, it was pointed out that although the Hon'ble Apex Court in Yasihey Yobin v. Department of Customs, Shillong, (2014) 13 SCC 344 in a Bench comprising of two Judges held that the “test of inextricable connection” is to be applied, the same having been noticed in Namdi Francis Nwazor v. Union of India, (1998) 8 SCC 534 but a larger Bench prior in time, in State of H.P. v. Pawan Kumar, (2005) 4 SCC 350 had held that the observation made in the latter part of the Judgment in Namdi Francis Nwazor are more in the nature of obiter. Consequently, the decision in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 holds good with regard to search and seizure. Reliance was also placed on Liyaqat Ali v. Union of India, (2008) 17 SCC 757. 11. I have heard the submissions advanced by the Learned Counsel at length and given due consideration thereof. Consequently, the decision in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 holds good with regard to search and seizure. Reliance was also placed on Liyaqat Ali v. Union of India, (2008) 17 SCC 757. 11. I have heard the submissions advanced by the Learned Counsel at length and given due consideration thereof. I have also perused the entire records of the Learned Trial Court including the impugned Judgment and Sentence. 12. The issue in this Appeal, therefore, is the nature and scope of compliance with the statutory checks and safeguards provided in the SADA and whether non-compliance of the provisions of Sections 17(3), 21(2), 24 and 30 of the SADA was fatal to the Prosecution case. 13. First, dealing with the question of “Chance recovery”, in Sunil Kumar it was held that- “13. The expression “chance recovery” has not been defined anywhere and its plain and simple meaning seems to be a recovery made by chance or by accident or unexpectedly. In Mohinder Kumar v. State, (1998) 8 SCC 655 this Court considered a chance recovery as one when a police officer “stumbles on” narcotic drugs when he makes a search. In Sorabkhan Gandhkhan Pathan v. State of Gujarat, (2004) 13 SCC 608 the police officer, while searching for illicit liquor, accidentally found some charas. This was treated as a “chance recovery”.” 14. In Sunil Kumar's case the Police Officers were looking for passengers who were travelling ticketless and they accidentally came across drugs carried by a passenger but there was no evidence to suggest that the Police Officers were aware that he was carrying narcotic drugs thereby making such recovery a chance recovery. In the matter at hand, the controlled substances were found by PWs 3 and 4 in M.O. XI accidentally when they were carrying out routine checking. Pausing here for a moment, it may be stated that ‘routine’ checking of documents of a vehicle is understandable but what comprises of “routine checking” of passengers is unexplained. 15. In any event, the facts of the case at hand differ from Sunil Kumar, since P.W.3 and P.W.4 on routine search stumbled upon the controlled substances but thereafter having reason to believe that the Appellants could be in possession of more controlled substances informed the Melli SHO who in turn directed the I.O. to take steps. 15. In any event, the facts of the case at hand differ from Sunil Kumar, since P.W.3 and P.W.4 on routine search stumbled upon the controlled substances but thereafter having reason to believe that the Appellants could be in possession of more controlled substances informed the Melli SHO who in turn directed the I.O. to take steps. The I.O., therefore, acted on “prior information” given by PWs 3 and 4. In view of the discussions above, in my considered opinion, recovery of M.O.I to M.O.X from M.O. XII and M.O. XIII by P.W.7 was not “chance recovery”. 16. What requires decision now in view of the above finding is whether it was necessary to comply with Section 24 of the SADA the provisions thereof being akin to Section 50 of the NDPS Act. It needs no reiteration here that similar to Section 50 of the NDPS Act, Section 24 of the SADA contains certain protection and safeguards and casts a duty on the empowered officer to ensure that search and seizure are conducted in the manner prescribed by Law. This is a double edged sword as oft repeated, on the one hand it protects the offender and on the other ensures the veracity of the evidence obtained on such search. 17. In State of Punjab v. Balbir Singh, (1994) 3 SCC 299 it was held as follows:- “25. ……………………. (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements there under would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.” [emphasis supplied] 18. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.” [emphasis supplied] 18. The extract above lays down the specific stage from when Section 50 of the NDPS Act would come into play and as a corollary in the present case Section 24 of the SADA. 19. In Namdi Francis Nwazor a three Judge Bench of the Hon'ble Apex Court held that where the line of separation is thin and fine between search of a person and an artificial object then Section 50 of the NDPS Act would apply. Later in time a decision of the Constitution Bench in Baldev Singh while reiterating the position in Balbir Singh and referring to a catena of decisions pertaining to Section 50 of the NDPS Act held that on its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. 20. The decision in Baldev Singh thus postulates that Section 50 of the NDPS Act would apply to search of a person but not to search of bag, article, container, etc. 21. In Pawan Kumar's case a three Judge Bench of the Hon'ble Apex Court while reiterating the position supra held as follows:- “11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word “person” occurring in Section 50 of the Act.” 22. The same Bench while discussing Namdi Francis Nwazor referred to hereinabove held that- “16. ……………………….. The Bench then finally concluded that on the facts of the case Section 50 was not attracted. The facts of the case clearly show that the bag from which incriminating article was recovered had already been checked in and was loaded in the aircraft. Therefore, it was not at all a search of a person to which Section 50 may be attracted. The observations, which was made in the later part of the judgment (reproduced above), are more in the nature of obiter as such a situation was not required to be considered for the decision of the case. No reasons have been given for arriving at the conclusion that search of a handbag being carried by a person would amount to search of a person. It may be noted that this case was decided prior to the Constitution Bench decision in State of Punjab v. Baldev Singh. After the decision in Baldev Singh this Court has consistently held that Section 50 would only apply to search of a person and not to any bag, article or container, etc. being carried by him.” [emphasis supplied] 23. Thus, the decision in Pawan Kumar held Namdi Francis Nwazor case to be obiter as elucidated above. 24. In Liyaqat Ali a two Judge Bench while discussing Section 50 of the NDPS Act and whether there was a conflict of decision between Namdi Francis Nwazor and Sarjudas v. State of Gujarat, (1999) 8 SCC 508 and Baldev Singh opined as follows:- “1. …… In our view there is no conflict. Law on the subject is very clear and it is as laid down in the cases of Sarjudas v. State of Gujarat and State of Punjab v. Baldev Singh. …… In our view there is no conflict. Law on the subject is very clear and it is as laid down in the cases of Sarjudas v. State of Gujarat and State of Punjab v. Baldev Singh. In Namdi Francis Nwazor, the question whether Section 50 would be applicable if the seizure is from a bag carried by a person, did not arise at all. …… The observations relied upon are mere passing observations which are per incuriam. Therefore, the law is as set out in the other two judgments.” 25. Nevertheless, it is pertinent to mention here that later in time in Yasihey Yobin's case10, reference was made by the Hon'ble Apex Court to Namdi Francis Nwazor where it has observed as follows:- “10. This position in law is settled by the Constitution Bench in State of Punjab v. Baldev Singh and in Megh Singh v. State of Punjab, (2003) 8 SCC 666 , where application of Section 50 is only in case of search of a person as contrasted to search of premises, vehicles or articles. But in cases where the line of separation is thin and fine between search of a person and an artificial object, the test of inextricable connection is to be applied and then conclusion is to be reached as to whether the search was that of a person or not. The above test has been noticed in the case of Namdi Francis Nwazor v. Union of India, wherein it is held that if the search is of a bag which is inextricably connected with the person, Section 50 of the Act will apply, and if it is not so connected, the provisions will not apply. It is when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found there from it cannot attract the requirements of Section 50 of the Act for the simple reason that the bag was not found on the accused person.” [emphasis supplied] 26. For clarity, it may be lucidly explained here that the Bench in Pawan Kumar comprised of a larger Bench than Yasihey Yobin, thus the decision of Pawan Kumar holds the field and the observation in Namdi Francis Nwazor pertaining to the test of inextricable connection (referred to later in Yasihey Yobin) has been held to be obiter. 27. In other words, where search of an article is concerned, Section 24 of the SADA being akin to Section 50 of the NDPS Act would not be applicable, the safeguard being relevant only when search of the person of an Accused is conducted. The facts of the case at hand indicate that the search was of the bags and not of the Appellants and hence I have to opine that it was not necessary for the I.O. to have extended the option under Section 24 of the SADA. 28. The foregoing decisions and discussions clear the air with regard to the applicability of Section 50 of the NDPS Act and as a corollary Section 24 of the SADA at the time of search and seizure. 29. Addressing the point of non-compliance of Section 17(3) of the SADA, Learned Additional Public Prosecutor, rebutted that the Prosecution was instituted by the Superintendent of Police, South District, wherein the charge-sheet had been forwarded by him to the Court Inspector, therefore, the provision had been duly complied with. 30. While addressing this argument, one may refer to a similar provision in the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, being Rule 7, which for convenience, is reproduced below:- “7. Investigating Officer.—(1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time...” 31. The said Rules specifies that the investigation shall be carried out by a Police Officer not below the rank of a Deputy Superintendent of Police. In contrast the relevant portion of Section 17(3) of the SADA merely requires that- “17. (1)…………. (2) …………. (3) …………….. The said Rules specifies that the investigation shall be carried out by a Police Officer not below the rank of a Deputy Superintendent of Police. In contrast the relevant portion of Section 17(3) of the SADA merely requires that- “17. (1)…………. (2) …………. (3) …………….. No prosecution under this Act shall be instituted except by a Gazetted Officer or an officer not below the rank of Deputy Superintendent of Police.” 32. Thus, it must be borne in mind that it is only institution of Prosecution that has to be done by a Gazetted Officer or an Officer not below the rank of Deputy Superintendent of Police, investigation of the case by Officers of the rank supra is not the requirement. Perusal of the records indicate that the charge-sheet was submitted by the I.O. to the SHO, Melli P.S., P.W.1, Police Inspector. An Officer in the rank of a Police Inspector is a Gazetted Officer. After the charge-sheet was received by him, it was forwarded to the concerned superior authority who in turn filed it before the Court. This indicates sufficient compliance of Section 17(3) of the SADA and quells the argument of the Appellants. 33. With regard to non-compliance of Sections 21(2) and 30 of the SADA, reliance was placed by Learned Additional Public Prosecutor in Sajan Abraham as reflected hereinabove. 34. Section 21 of the SADA is similar to Section 42 of the NDPS Act and is reproduced herein below; “21. 33. With regard to non-compliance of Sections 21(2) and 30 of the SADA, reliance was placed by Learned Additional Public Prosecutor in Sajan Abraham as reflected hereinabove. 34. Section 21 of the SADA is similar to Section 42 of the NDPS Act and is reproduced herein below; “21. (1) Any such officer (being an officer superior in rank to a peon, helper or constable) to the departments of drugs control, excise, police or any other department of the Government as is empowered in this behalf by general or special order of the Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize any drug or substance or any other article and any animal or conveyance which he has reason to believe to be liable for confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act; (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording, any opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search any building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 35. Section 30 of the SADA is similar to Section 57 of the NDPS Act and reads as follows:- “30. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior. 35. Section 30 of the SADA is similar to Section 57 of the NDPS Act and reads as follows:- “30. Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours of the arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official.” 36. The requirements of Law that an empowered Officer is expected to abide by is manifest in the Sections. 37. With regard to Section 42 of the NDPS Act, it may be pointed out that in Karnail Singh v. State of Haryana, (2009) 8 SCC 539 the Hon'ble Apex Court while discussing Sajan Abraham's case at Paragraph 16, has observed as follows:- “16. The conclusion of this Court with regard to Section 42 was as under: (Sajan Abraham case, SCC pp. 695-96, paras 6-7) “6. ……. In construing any facts to find, whether the prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with a pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply with, which the courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of the law. The court however while construing such provisions strictly should not interpret them so literally so as to render their compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. 7. ……………..” [emphasis supplied] 38. Further, at Paragraph 25, it was held that- “25. In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. 7. ……………..” [emphasis supplied] 38. Further, at Paragraph 25, it was held that- “25. A careful examination of the facts in Abdul Rashid (2000) 2 SCC 513 and Sajan Abraham shows that the decisions revolved on the facts and do not really lay down different propositions of law. In Abdul Rashid, there was total non-compliance with the provision of Section 42. The police officer neither took down the information as required under Section 42(1) nor informed his immediate official superior, as required by Section 42(2). It is in that context this Court expressed the view that it was imperative that the police officer should take down the information and forthwith send a copy thereof to his immediate superior officer and the action of the police officer on the basis of the unrecorded information would become suspect though the trial, may not be vitiated on that score alone. On the other hand, in Sajan Abraham, the facts were different. In that case, it was very difficult, if not impossible for the Sub-Inspector of police to record in writing the information given by PW 3 and send a copy thereof forthwith to his official superior, as the information was given to him when he was on patrol duty while he was moving in a jeep and unless he acted on the information immediately, the accused would have escaped. The Sub-Inspector of Police therefore acted without recording the information into writing, but however, sent a copy of the FIR along with other records regarding arrest of the accused immediately to his superior officer. It is in these circumstances that this Court held that the omission to record in writing the information received was not a violation of Section 42.” 39. In Baldev Singh's case it was held that- “17. …………..,…….. “25. …… (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. .. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.…….” 40. In Baldev Singh's case it was held that- “17. …………..,…….. “25. …… (2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. .. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.…….” 40. In the backdrop of the above decisions, I now consider the facts of situation at hand, which are different from Sajan Abraham's case4 inasmuch as it is no one's case that the I.O. was on patrol duty or engaged in some other urgent work which prevented her from taking down the information as envisaged under Section 21 of the SADA. Since she did not take down any information in writing as postulated under Section 21(1) of the SADA, there is no question of her complying with the provisions of Section 21(2) of the SADA and Prosecution has also not made any effort to establish that she had within seventy two hours forwarded a copy thereof to her immediate superior officer. 41. So far as Section 30 of the SADA is concerned, it is similar to the provisions of Section 57 of the NDPS Act requiring the I.O./empowered officer to make within forty eight hours a full report of particulars of such arrest or seizure to his immediate superior official. A lame effort has been made by the Prosecution by pointing out to Exhibit 8 but this in no way supports their case as the immediate superior officer of the I.O. would be the PI, P.W.1. Besides, Exhibit 8 does not conform to the requirement of Section 30 of the SADA. 42. At this juncture, however, I hasten to add that in Karnail Singh the Hon'ble Apex Court clarified that the non-compliance of the said provision, i.e., Section 42 does not vitiate the trial if it does not cause any prejudice to the Accused. At the same time, it opined that compliance with the requirements of Section 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. Total non-compliance of the Section is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of the provision. Total non-compliance of the Section is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of the provision. But if the information was received when the police officer was in the police station with sufficient time to take action and 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 NDPS Act. 43. Having dealt with the above argument, this Court does not dispute the next argument of the State that minor contradictions do not effect the Prosecution case and the fact that there could be stock witnesses whose evidence cannot be said to be totally unreliable. The settled position of Law is that evidence of such witnesses cannot be discarded merely on the ground that he is either partisan or interested, if he is otherwise found to be trustworthy and credible, it only requires closer scrutiny for obvious reasons. Consequently, minor contradictions apparent in the evidence of Prosecution witnesses with regard to the variation in the number of the vehicle and the presence of an alleged third person are brushed aside, while the evidence of P.W.6 allegedly a stock witness is given its due weight. 44. Addressing the contention of the Appellants that Section 24(4) of the SADA was flouted, this appears to be an uncalled for argument as it is not denied that P.W.7, a female police officer, was at the spot, the provision merely requiring that a female should either be searched by a female or in the presence of a female. 45. 44. Addressing the contention of the Appellants that Section 24(4) of the SADA was flouted, this appears to be an uncalled for argument as it is not denied that P.W.7, a female police officer, was at the spot, the provision merely requiring that a female should either be searched by a female or in the presence of a female. 45. Now dealing with the argument that the Exhibits 5 and 6 were prepared after Exhibit 1 indicating that the FIR was lodged prior in time which goes against the tenets of the Law in question, in this regard, one may revert usefully to the decision in Balbir Singh cited hereinabove inasmuch as on sifting through Paragraph 25, it is clear that if during the search there is chance recovery by a Police Officer who is not empowered then he should inform the empowered Police Officer who would then proceed in accordance with the provisions of the NDPS Act which, therefore, means not only in terms of Section 50 of the NDPS Act but also Sections 42 and 57, as a corollary Sections 24, 21 and 30 of the SADA. This Court in Jigmee Dorjee Bhutia1 laid down that the search and seizure of controlled substances has to precede the lodging of the FIR. In the matter at hand, perusal of Exhibits 5 and 6 reveal the time therein to be ‘2100 hours’ and ‘2040 hours’ respectively whereas Exhibit 1 appears to have been lodged at ‘1900 hours’. Once P.W.3 informed P.W.1 and P.W.7 of his suspicion on having seen controlled substances in M.O.XI, P.W.7 ought to have proceeded as per the mandate of Law laid down in the SADA. 46. In Mohd. Hashim v. State, 2000 CRI.L.J. 1510 the Hon'ble Delhi High Court has held that- “4. ….The prosecution has not offered any explanation as to under what circumstances number of the FIR (Ex.P.W. 4/B) had appeared on the top of the aforesaid documents, which were allegedly prepared on the spot. This gives rise to two inferences that either the FIR (Ex.P.W. 4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. This gives rise to two inferences that either the FIR (Ex.P.W. 4/B) was recorded prior to the alleged recovery of the contraband or number of the said FIR was inserted in these documents after its registration. In both the situations, it seriously reflects upon the veracity of the prosecution version and creates a good deal of doubt about recovery of the contraband in the manner alleged by the prosecution.” 47. In State of Orissa v. Sitansu Sekhar Kanungo, JT 2002 (8) SC 292 the Hon'ble Apex Court has held that- “4. ……… The doubt which sprang up as regards the seizure lists, admittedly cannot be brushed aside. The seizure lists ought to have been prepared before the lodgement of the FIR and as such question of mention of the FIR no. in the seizure lists would not arise at all. But in the contextual facts, the indication of the case number in the seizure lists has resulted in the submission of the learned advocate for the defence before the High Court as also before this Court that this extra noting on the seizure lists cannot but be ascribed to be a manipulation in the document which is not permissible under the law. …” 48. Thus, on this count the Prosecution case has no legs to stand. 49. With regard to the search and seizure there is a glaring anomaly in the evidence of P.W.1 as against the evidence of P.W.3, P.W.4 and P.W.7. P.W.7 vouched by the evidence of P.W.3 and P.W.4 has deposed that M.O.I to M.O.X was seized in the presence of P.W.1 who for his part has expressed denial of his presence at the place of occurrence. This infirmity surely cannot be overlooked in view of the gravity of the allegations against the Appellants. The Vehicle Entry Register of Melli Check Post has not been forwarded to substantiate the Prosecution case. Hence, lodging of Exhibit 1, prior in time to Exhibits 5 and 6, non-compliance of the provisions of the SADA as detailed in the foregoing paragraphs and the anomaly discussed above in the Prosecution evidence leads one to doubt the authenticity of the search and seizure of the controlled substances. 50. Hence, lodging of Exhibit 1, prior in time to Exhibits 5 and 6, non-compliance of the provisions of the SADA as detailed in the foregoing paragraphs and the anomaly discussed above in the Prosecution evidence leads one to doubt the authenticity of the search and seizure of the controlled substances. 50. In conclusion while analysing the entire facts and circumstances, the other shortcomings in the Prosecution case is exacerbated by the failure of the Prosecution to comply with the provisions of Law and strikes at the root of its case. 51. Consequently, the impugned Judgment and Sentence of the Learned Trial Court is liable to be and is set aside. 52. Appeal succeeds. 53. The Appellants are acquitted of the offences under Section 9(d) of the SADA read with Section 34 of the IPC. They are also acquitted of the offences under Rule 17(1) of the SAD Rules read with Section 14 of the SADA and Section 34 of the IPC. 54. Both Appellants be set at liberty forthwith unless required in any other case. 55. Fine, if any, deposited by the Appellants as per the assailed Order of Sentence be refunded to them. 56. Copy of this Judgment be transmitted forthwith to the Learned Trial Court for information along with the original records related to this case.