JUDGMENT : 1. This criminal appeal has been directed against the judgment of conviction and order of sentence dated 22nd December, 2014 and 23rd December, 2014, respectively, passed by learned Principal Sessions Judge, Latehar in connection with N.D.P.S. Case No.01 of 2012, arising out of Balumath P.S. Case No.02 of 2012, whereby the appellant has been held guilty for the offence punishable under Section 18 of the N.D.P.S. Act and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default of making payment of fine further to undergo simple imprisonment for one year. The period of detention already undergone shall be set off against the sentence of imprisonment under the provision of Section 428 Cr.P.C. 2. The fact, in brief, is that the informant, who happens to be a Police Officer, was in receipt of secret information that a person travelling on Gupta bus, bearing Registration No.BR-2D-3998 has been carrying opium in his airbag for smuggling. Physical description as well as wearing apparel of the suspect was also disclosed. Considering the information so received, the Officer-in-charge put a check on the road near the police station. After arrival of said Gupta bus, the person having aforesaid description was found standing on the rear door of bus. He was apprehended and the matter was informed to Circle Officer (P.W.1), who also reached to the place. In presence of Vinay Manish R. Lakra (P.W.1), the then Circle Officer, Balumath, District Latehar, the airbag which the suspect was holding was checked and a polythene packet containing opium in semi solid form, weighing 1.431 Kg., was recovered. Accordingly, seizure list was prepared by P.W.1 and signed by witnesses and the informant as well. The informant, who was then posted as Officer-in-charge of Balumath Police Station, had recorded self statement and registered a case, being Latehar, Balumath P.S. Case No.02 of 2012 dated 3rd January, 2012, under Sections 15, 17, 18 and 22 of the N.D.P.S. Act, 1985. The investigation was carried out; sample of recovered opium was sent to Forensic Science Laboratory for its examination; statements of witnesses were recorded; and after concluding the investigation, charge sheet against the appellant was submitted and, accordingly, cognizance was taken. 3. Charges under Sections 15, 17, 18 and 22 of the N.D.P.S. Act against the appellant were framed to which he pleaded not guilty and claimed to be tried. 3. Charges under Sections 15, 17, 18 and 22 of the N.D.P.S. Act against the appellant were framed to which he pleaded not guilty and claimed to be tried. To substantiate the charges, the prosecution has examined altogether six witnesses. The defence of the appellant in the Trial Court was of total denial of the allegation levelled. Learned Sessions Judge, at the conclusion of trial, placing reliance on the evidence and documents, held the appellant guilty for the offence punishable under Section 18 of the N.D.P.S. Act and inflicted sentence as indicated above. 4. The appellant has assailed the impugned judgment on the ground that the provisions of Sections 42 and 50 of the N.D.P.S. Act, 1985 have not been complied with. No compliance of Section 52(A) of the N.D.P.S. was done. Since the Investigating Officer could not be examined, what happened to seized article could not be brought on record. Furthermore, under what circumstance sample from seized article was taken and whether procedure laid down under the Act was complied with or not is also unknown. According to the evidence of P.W.1 and P.W.3, the article seized from possession of the appellant was handed over to the Officer-in-charge of the said police station (P.W.2). In Para-10, P.W.1 has stated that he could not know whether sample from seized article was taken or not. According to the statement of P.W.1, the Officer-in-charge got the article weighed and it was about 1½ kg. but the article so seized was not weighed in his presence. P.W.1 has further stated that the article so seized was sealed and it was bearing the signature of this witness as well as signature of appellant and the Officer-in-charge (P.W.2). P.W.2-Ravikant Prasad was then posted as Officer-in-charge of Balumath Police Station and he is the informant. He has stated that after receiving secret information, the bus, bearing Registration No.BR-02D 3998, was stopped near the gate of police station and the appellant was apprehended. The airbag held by the appellant was containing opium to which he has described as coagulated juice of opium in concentrated semi solid form, weighing 1.431 Kg. In his cross-examination, he has stated that in the investigation kit they have weighing instrument and the article was weighed at the place of occurrence. The airbag held by the appellant was containing opium to which he has described as coagulated juice of opium in concentrated semi solid form, weighing 1.431 Kg. In his cross-examination, he has stated that in the investigation kit they have weighing instrument and the article was weighed at the place of occurrence. According to the statement of P.W.2, the article so seized from possession of the appellant was seized near the gate of police station and, accordingly, seizure list was prepared, whereas P.W.1 says that seizure list was prepared at the Police Station, Balumath. P.W.2 is also silent on the point, as to when and where and in whose presence sample from the seized article was taken. He has stated that the appellant after his arrest and the article so seized from his possession were handed over to the Investigating Officer. Had it been so, admittedly, no sample from the seized article was taken by any one in his presence. The mandatory requirement of law is that sample is to be taken in presence of a Magistrate and the evidence on record does not indicate that any such sample was taken either by P.W.2 or by the Investigating Officer in presence of a Magistrate. P.W.2 has proved sample of seized opium, which was returned back after being chemically examined by Forensic Science Laboratory and it was proved as material Ext.1. According to report of Forensic Science Laboratory, the sample with plastic Dibba was weighing 33 gms. Since total quantity of alleged opium seized has not been brought on record, it could not be said that it was weighing 1.431 Kg. and, therefore, the learned Trial Judge has wrongly considered the quantity of opium more than smaller but less than commercial. Non-examination of the Investigating Officer has become fatal to the prosecution, for the reason, it is unknown to the record as to how sample from the seized article was taken and whether mandatory provision for taking sample was complied with or not, it is unknown, as to what happen to rest of the articles seized and how it was disposed of. It is also unknown, after the Investigating Officer received the seized article, under what circumstance and at which place it was kept because the sample was taken after about one month and it was received by Forensic Science Laboratory after 1½ month from the date of occurrence. It is also unknown, after the Investigating Officer received the seized article, under what circumstance and at which place it was kept because the sample was taken after about one month and it was received by Forensic Science Laboratory after 1½ month from the date of occurrence. This conduct of P.W.2 as well as Investigating Officer creates a serious doubt against authenticity of sample taken and sent for its examination to Forensic Science Laboratory. However, the report received from Forensic Science Laboratory is also not conclusive because percentage of morphine detected in the substance has not been indicated in the report. The report received from Forensic Science Laboratory has been marked exhibit with objection. The person who had conducted chemical examination of the sample and the person who had prepared the report have not come forward to support Ext.5. 5. It is vehemently argued that total quantity of article seized has not been brought on record. The sample which was received by Forensic Science Laboratory was weighing 33 gms., including plastic Dibba. If it was so, the quantity could not be considered between smaller quantity and commercial quantity and, therefore, the appellant should not have been held guilty and inflicted sentence to the extent of ten years, as prescribed under Section 18(C) of the N.D.P.S. Act, 1985. Learned Trial Judge has further committed error by not following necessary provision of law under which the appellant has been held guilty. It is specifically not indicated whether the appellant has been punished either under Section 18(a) or Section 18(b) or Section 18(c) of the N.D.P.S. Act, 1985. Lastly, it is contended that the driver and the conductor (P.Ws.4 & 5) have stated that nothing incriminating was recovered from possession of the appellant, though they have admitted their signatures appearing in the seizure list. Simultaneously, they have stated that they were threatened to sign on a blank piece of paper. P.Ws.3 and 6 are formal witnesses, who have accepted their signatures, appearing on the seizure list, but they too have stated that they were directed to put their signatures on a blank piece of paper. No member of Raiding Party has come forward to support the contentions of P.Ws.1 and 2. In support of above said contentions learned counsel for the appellant has relied on following judgments:- (i) (2002)1 East Cr. Cases 224 (SC) [Jagdish Vs. No member of Raiding Party has come forward to support the contentions of P.Ws.1 and 2. In support of above said contentions learned counsel for the appellant has relied on following judgments:- (i) (2002)1 East Cr. Cases 224 (SC) [Jagdish Vs. State of Madhya Pradesh] (ii) (2005)2 East Cr. Cases 243 (SC) [State of Rajasthan Vs. Gurprit Singh] (iii) 2001(2) East Cr. Cases 454 (Pat.) [Surendra Pandey Vs. State of Bihar] 6. Learned APP has opposed the argument and submitted that seizure was made in presence of a gazetted officer (P.W.1). The airbag which the appellant was carrying at the time of occurrence was checked and opium in semi solid form, weighing 1.431 Kg. was recovered. The seizure list was duly prepared by P.W.1 and it was signed by the informant, the witnesses and the appellant and copy of the same was duly handed over to the appellant. P.Ws.1 and 2 have fully supported the prosecution case. They have stated that on 3rd January, 2012, at about 10:30 a.m., Gupta Bus, bearing Registration no.BR-02D 3998, was checked near the gate of Balumath Police Station. The appellant was apprehended and airbag held by him was seized and searched in presence of driver and conductor of said bus. The bag was containing 1.431 Kg. of opium in semi solid form. The seizure witnesses (P.Ws.4 and 5) have admitted their signatures appearing on the seizure list. The report received from Forensic Science Laboratory supports that morphine and alkaloid were found in the sample sent for chemical examination and the report has been marked as Ext.5. On the point of application of Sections 42 and 50 of the N.D.P.S. Act, 1985, it was submitted that aforesaid sections are not applicable in the case at hand because opium recovered was carried by the appellant in a bag. In this context, judgment reported in (2010)3 SCC 746 [Ajmer Singh Vs. State of Haryana] has been referred. 7. After hearing rival submissions extended from both sides, we have examined the case record, perused the evidences and documents and the impugned judgment. Admittedly, P.Ws.3 to 6 have admitted their signatures appearing on two different seizure lists, but they have stated that nothing was recovered from possession of the appellant in their presence. They were directed by the police officer to put their signatures on a blank paper to which they followed. Admittedly, P.Ws.3 to 6 have admitted their signatures appearing on two different seizure lists, but they have stated that nothing was recovered from possession of the appellant in their presence. They were directed by the police officer to put their signatures on a blank paper to which they followed. P.Ws.4 and 5 are the driver and conductor of aforesaid Gupta Bus in which the appellant was found travelling at the time of occurrence. There are contradictions in the statements of P.Ws.1 and 2. P.W.1 has stated that he was informed by Officer-in-charge (P.W.2) that a person travelling in Gupta Bus has been carrying some illegal articles, whereas the informant (P.W.2) has stated in his deposition that he was in receipt of secret information that a person travelling in Gupta Bus has been carrying opium in a airbag. According to P.W.1, the seizure list was prepared at the police station, whereas P.W.2 says that seizure list was prepared at the place of occurrence itself and arrest memo was prepared. According to P.W.1, the seized article was not weighed in his presence, whereas P.W.2 says that it was weighed at the place of occurrence itself. If the contention of P.W.1 is correct that article so seized was weighed by the Officer-in-charge, then he was not in position to say the actual weight of the article seized and that is the reason he has stated that it was about 1½ kg. P.W.1 as well as P.W.2, both, have admitted that no sample from the seized article was taken in their presence. Both witnesses are silent on the point as to what happened to article seized after it was handed over to the Investigating Officer. It is unknown to the case record, as to under what circumstance and in whose presence sample from the seized article was taken. This becomes doubtful when P.Ws.1 and 2 say that total article seized by them was sealed and signed by them. If it was sealed and signed by them, then under which circumstance in their absence and without their knowledge, the seal was removed and how the sample was taken and by whom and under what provision of law. In the circumstances, there appears substance in the argument advanced that authenticity of sample sent for chemical examination is doubtful. If it was sealed and signed by them, then under which circumstance in their absence and without their knowledge, the seal was removed and how the sample was taken and by whom and under what provision of law. In the circumstances, there appears substance in the argument advanced that authenticity of sample sent for chemical examination is doubtful. The prosecution has not proved any order of the Special Judge or the Magistrate under whose order and signature the sample was sent for its chemical examination to Forensic Science Laboratory. It is apparent that mandatory provisions required under N.D.P.S. Act, 1985 have not been complied with and certain facts remain unknown to the record due to non-examination of the Investigating Officer. Besides two official witnesses, the remaining four witnesses have not supported the prosecution case. No member of raiding party, present at that time, has been examined. 8. Considering all these aspects of the matter, we are not inclined to uphold the judgment of conviction and sentence recorded by learned Principal Sessions Judge, Latehar and the same stands set aside. The appeal stands allowed. The appellant, who is lodged in jail, in connection with N.D.P.S. Case No.01 of 2012, arising out of Balumath P.S. Case No.02 of 2012, is directed to be released forthwith, if not wanted in any other case, and for that the convicting/successor court shall issue appropriate direction, if needed.