JUDGMENT : RAKESH KUMAR, J. 1. The present Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C.") was preferred by the sole appellant against judgment of conviction and sentence passed in D.R.I. Case No. 11 of 2008 by Sri Prabhakar Mishra, learned 2nd Addl. Sessions Judge, Muzaffarpur (hereinafter referred to as the "trial judge"). By judgment dated : 17.09.2017 the appellant was held guilty and convicted for commission of offence under Section 20(ii) (C) of the Narcotic Drugs And Psychotropic Substances Act, 1985 (hereinafter referred to as the "N.D.P.S. Act") and by order dated23.09.2017 the appellant under the aforesaid Section was sentenced to undergo rigorous imprisonment for twelve years and to pay a fine of Rs. 1,50,000/-and in default of payment of fine he was further directed to undergo simple imprisonment for three years. 2. Short fact of the case is that on 05.12.2008 one Sri Shivendra Satyarthi [P.W. 4], Intelligence Officer, D.R.I., S.R.U., Muzaffarpur received secret information regarding concealment of Nepali Ganja in the house of the appellant. Thereafter, informant and superior officials formed a raiding team and after obtaining services of local Police conducted raid in the house of the appellant and on search from a room of the house of the appellant two plastic bags were recovered. In two plastic bags there were altogether eight (08) packets containing Ganja. The appellant was also examined by the Intelligence Officer and he disclosed that the said Ganja was virtually of one Manoj Rai, and thereafter, raiding party visited the house of Manoj Rai where his elder brother-Surya Kant Rai was found. Surya Kant Rai also disclosed regarding his involvement and stated that actually it was committed by his brother-Manoj Rai. Subsequently, this appellant with Surya Kant Rai and seized Ganja were carried to D.R.I. Office, S.R.U., Muzaffarpur. On the next day seizure memo was prepared. The appellant and Surya Kant Rai were formally arrested by preparation of arrest memo and appellant with other accused persons were produced on 07.12.2008 before the learned Sessions Judge, Muzaffarpur and they were remanded. Subsequently, this appellant with Surya Kant Rai and seized Ganja were carried to D.R.I. Office, S.R.U., Muzaffarpur. On the next day seizure memo was prepared. The appellant and Surya Kant Rai were formally arrested by preparation of arrest memo and appellant with other accused persons were produced on 07.12.2008 before the learned Sessions Judge, Muzaffarpur and they were remanded. Subsequently, P.W. 4/Intelligence Officer conducted enquiry and finally on 22.04.2009 a complaint petition along with enclosures were filed in the court of learned Sessions Judge, Muzaffarpur disclosing the following facts:- "(1) That the complainant is a public servant and working as Intelligence Officer in the Directorate of Revenue Intelligence (herein after referred as DRI), Sub-Regional Unit, Muzaffarpur and filing complaint in the official capacity as such. (2) That on 05.12.2008 at about 17.30 hrs. a secret and specific information was received by a casual informer that a consignment of Nepali Ganja in huge quantity were secreted in the house of Sri Ram Babu Paswan S/O Late Ram Sundar Paswan at Village Wajidpur, Post-Wajidpur Sadat, P.S. Bidupur, District Vaishali. The information was communicated to the Assistant Director, Directorate of Revenue Intelligence, Patna and as per his direction a team was formed and rushed to Bidupur Police Station. The police officials of Bidupur Police Station were informed about the matter and they were requested for providing security and also requested to become witnesses for which they were agreed. The officers along with the police officials reached at about 22.00 hrs. On 05.12.2008 at the house of Sri Ram Babu Paswan located at the above said address. One person who disclosed his identity as Sri Ram Babu Paswan was present at his house, he was informed about the information. In presence of Sri Ram Babu Paswan and police officials, the house of Sri Paswan was searched and two plastic bags containing Ganja were recovered from the north side room located in the back portion of his house. In presence of Sri Paswan and police officials, both the bags were examined which resulted in the recovery of eight (08) packets of Ganja. On being asked Sri Paswan stated that Sri Manoj Rai S/0 Late Jagdish Rai, resident of village-Kutubpur Said pur, P.S.-Bidupur, District-Vaishali is the owner of the recovered Ganja and his elder brother Sri Surya Kant Rai S/0 Late Jagdish Rai is his associate in the smuggling of said Ganja. On being asked Sri Paswan stated that Sri Manoj Rai S/0 Late Jagdish Rai, resident of village-Kutubpur Said pur, P.S.-Bidupur, District-Vaishali is the owner of the recovered Ganja and his elder brother Sri Surya Kant Rai S/0 Late Jagdish Rai is his associate in the smuggling of said Ganja. Accordingly, the raiding party along with Sri Ram Babu Paswan reached at the house of Sri Manoj Rai and his brother Sri Surya kant Rai, which is located about 100 meters away from his house. Sri Manoj Rai is not available at his house, however on recognition of Sri Paswan, Sri Surya Kant Rai was apprehended by the officers. (3) Now considering the security and safety reason the recovered Ganja along with the apprehended persons were brought to DRI Office, Muzaffarpur in presence of the police officials. In the office in presence of the above said persons the said Ganja were weighed which found to be 70 kgs. (Net weight) of value of Rs. 1,40,000/-(4) That seized 70 k.gs of Ganja of value Rs. 1,40,000/-was seized under Section 42(1)(c) of the NDPS Act, 1985 for violation of section 8(C) of the Act ibid as the same appeared to be liable for confiscation under the provisions of Section 60 of the Act ibid. Three representative samples wt. 25 gms. Each were drawn in presence of the accused, and two independent witnesses duly sealed by the departmental seal and then rest of Ganja were again kept in the same two plastic bags and duly sealed by the departmental seal. Both the accused have accepted their guilt and knowledge for the possession of seized Ganja for lure of money. In course of statement recorded under Section 67 of the NDPS Act, 1985, Sri Ram Babu Paswan stated that the actual owner of seized Ganja was Sri Manoj Rai, and because of his threat, fear and lure of money he has done such work. He has admitted that Sri Manoj Rai has kept the said consignment of Ganja ten days ago in his house and assured him to give Rs. 1000/-for this work. Further Sri Surya Kant Rai also stated that the actual owner of the seized Ganja was his younger brother Sri Manoj Rai who is criminal minded and he is working as his associate in the smuggling of seized Ganja. 1000/-for this work. Further Sri Surya Kant Rai also stated that the actual owner of the seized Ganja was his younger brother Sri Manoj Rai who is criminal minded and he is working as his associate in the smuggling of seized Ganja. He also admitted that Sri Manoj Rai has kept the said consignment of Ganja in the house of Sri Ram Babu Paswan, ten days ago. However on being asked both of them have shown their ignorance regarding the other persons involved in this case. (5) The seizure formalities were completed under a panchnama drawn before the above said two Independent witnesses and both the above said accused. The copies of seizure memo and other relevant documents were handed over to both the above named accused by the officers after completion of seizure formalities. (6) That on the reasonable belief that the recovered Ganja (NDPS), a contraband item under the provisions of the NDPS, Act, 1985, being possessed and carried by both the above names accused in violation of the provisions of Section 8(c) of the NDPS Act, 1985 and both the above named accused are liable for punishment under the provision of Section 20,23 & 29 of the NDPS Act 1985, and therefore both the above named accused were arrested on 06.12.2008 under Section 43(b) of the Act ibid in contravention of Section 8 of the NDPS Act, 1985 by the officer of DRI, Muzaffarpur and on 07.12.2008 both of them were produced before the Hon'ble Court and they were remanded for Judicial Custody at Khudi Ram Bose Central Jail, Muzaffarpur. (7) That one sample of seized Ganja (NDPS) was sent for chemical analysis to the Chemical Examiner, Customs House, Kolkata and in the test report the Chemical Examiner reported that "The sample is in the form of flowering tops consisting of buds, leaves and stalks. It responds to the test for Cannabis. The sample has the characteristics of Ganja." (Test report of the Chemical Examiner, Customs House, Kolkata is enclosed herewith in Original, as Annexure-I) (8) That Superintendent, Customs Circle, Hajipur was requested to conduct follow up action and address verification at the address of Sri Ram Babu Paswan S/O Late Ram Sundar Paswan at Village-Wajidpur, Post Wajidpur Sadat, P.S.-Bidupur, District Vaishali and Sri Manoj Rai S/O Late Jagdish Rai resident of village Kutubpur Said pur P.S.-Bidupur, District Vaishali. The Superintendent, Customs Circle, Hajipur vide his letter CNO. I/FOU/CUS/HJP/2008/440 dated 30.12.2008 (enclosed here with in original as Annexure-II) had reported that the officers visited the address of Sri Ram Babu Paswan S/O Late Ram Sundar Paswan at Village-Wajidpur, Post Wajidpur Sadat, P.S.-Bidupur, District-Vaishali and Sri Surya Kant Rai S/O Late Jagdish Rai resident of village Kutubpur Saidpur, P.S.-Bidupur, District-Vaishali and consulted the Mukhiya of concerned Gram Panchayats and as per their report both the above said address were found correct. (9) That Sri Manoj Rai S/O Late Jagdish Rai resident of village Kutubpur Said pur, P.S. Bidupur, District-Vaishali was summoned to appear before the Senior Intelligence Officer, DRI, Muzaffarpur on 06.02.2009 but the said Summon was returned by the Postal Authority with the remarks "PANE WALA BAHAR GAYE HUYE HAI WAPAS KIYA." (Envelope enclosed in original as Annexuer-III) (10) That Sri Manoj Rai was again summoned to appear before the Senior Intelligence Officer, DRI, Muzaffarpur on 19.02.2009, but he has not appeared on the schedule date and time. (11) That Sri Manoj Rai was again summoned to appear before the Senior Intelligence Officer, DRI, Muzaffarpur on 27.02.2009 but the said Summon was returned by the Postal Authority with the remarks "ALREADY GONE OUT RETURNED TO SENDER." (Envelope enclosed in original as Annexure-IV) (12) That in course of enquiry/investigation conducted so far the active involvement of Sri Ram Babu Paswan S/O Late Ram Sundar Paswan at village-Wajidpur, Post Wajidpur Sadat, P.S.-Bidupur, District-Vaishali and Sri Surya Kant Rai S/O Late Jagdish Rai resident of village-Kutubpur Said pur, P.S.-Bidupur, District-Vaishali is established in as much as they were found consciously engaged in smuggling activities of Ganja (NDPS), a contraband item under the provisions of the NDPS Act, 1985 and they have admitted their guilt and knowledge in their statement recorded under Section 67 of the NDPS Act, 1985. In the light of above facts they deserve to be given deterrent punishment by the Court of Law under the provisions of the NDPS Act, 1985. It is therefore being prayed to the Hon'ble Court to take cognizance in the said case against both the accused for the offence committed as mentioned above by them and punish them in accordance with the provisions of Section 20,23 & 29 of the NDPS Act, 1985 and for this complainant shall ever pray. It is therefore being prayed to the Hon'ble Court to take cognizance in the said case against both the accused for the offence committed as mentioned above by them and punish them in accordance with the provisions of Section 20,23 & 29 of the NDPS Act, 1985 and for this complainant shall ever pray. (13) Sri Manoj Rai S/O Late Jagdish Rai resident of village-Kutubpur Saidpur, P.S.-Bidupur, District-Vaishali has been found to be the real owner of the seized Ganja (NDPS) and he has been found indulged consciously in abetting in the smuggling activities by way of planning/arranging of Ganja (NDPS), a contraband item under the provisions of the NDPS Act, 1985 and he has been absconding till date. He has not appeared before the DRI Officers on the schedule date of summons issued against him, which shows his guilty mind in the instance case. He was found consciously engaged in smuggling activities of Ganja (NDPS), a contraband item under the provisions of the NDPS Act, 1985. It is therefore being prayed to the Hon'ble court to take cognizance in the said against the accused for the offences committed as mentioned above by him and Non bailable warrant may kindly be issued against the absconding accused Sri Manoj Rai S/O Late Jagdish Rai resident of village-Kutubpur Said pur, P.S. Bidupur, District-Vaishali as he has committed offence punishable under Section 20,23 & 29 of the NDPS Act, 1985. (14) Further it is being prayed that seized 70 kgs. of Ganja, which was smuggled from Nepal into India violating the provisions of Section 8 of the NDPS Act, 1985 and whose chemical test report was also found positive as per the Chemical Analysis Report of Chemical Examiner, Customs House, Kolkata may be confiscated under Section 60 of the NDPS Act, 1985 and for this complainant shall every pray. (15) In the instant case further investigation is going on, the supplementary Complaint Petition may be filed in the Hon'ble Court as and when found required." 3. After filing of the complaint petition on 06.06.2009 learned Session Judge took cognizance of the offences. Since it was official complaint petition the learned Sessions Judge proceeded to examine witnesses before charge. (15) In the instant case further investigation is going on, the supplementary Complaint Petition may be filed in the Hon'ble Court as and when found required." 3. After filing of the complaint petition on 06.06.2009 learned Session Judge took cognizance of the offences. Since it was official complaint petition the learned Sessions Judge proceeded to examine witnesses before charge. Before charge altogether three witnesses, namely: Shivendra Satyarthi, Intelligence Officer, Krishna Nandan Prasad and Babu Lal Paswan were examined , and thereafter, finally on 25.06.2012 charge was jointly framed against the appellant and Surya Kant Rai for offence under Section 20(b)(ii)C of the N.D.P.S. Act. It is necessary to indicate that complaint was initially filed against three accused persons, however, since one of the accused remained absconder, on 31.05.2010 his case was separated and case against remaining two accused which includes the appellant proceeded. 4. During the trial to establish its case from the prosecution side altogether five witnesses were examined. The complainant/Sri Shivendra Satyarthi, Intelligence Officer, D.R.I., SRU, Muzaffarpur was examined as P.W. 4. P.W. 1-Krishna Nandan Prasad, Hawaldar (D.R.I.); P.W. 2/Anil Kumar Sharma, Intelligence Officer (D.R.I.) and P.W. 3/Babu Lal Paswan , T.S. Worker, D.R.I. Muzaffarpur who were raiding party were examined to corroborate that on 05.12.2008 raid was conducted and recovery was affected from the house of the appellant, whereas, P.W. 5-Raghunandan Kumar at the time of his evidence was posted as Godown In-charge, Custom Division, Muzaffarpur. After completion of the prosecution evidence on 04.06.2014 circumstances and evidences collected during the trial were explained to the appellant and his statement under Section 313 of the Cr.P.C. was recorded in which he claimed to be innocent and also deposed specifically that by force his statement was got recorded. Meaning thereby, that he claimed that his confession was extracted by using force. At this juncture it is also necessary to indicate that another co-accused/Surya Kant Rai who was arrested along with the appellant, on 31.07.2009 was released on bail in view of bail order passed by the High Court. During trial he regularly appeared, however after closure of defence case and when the case after argument was fixed for judgment he did not appear and this was the reason that on 23.06.2017 his bail bond was cancelled and processes under Section 82, 83 of the Cr.P.C. was directed to be issued. During trial he regularly appeared, however after closure of defence case and when the case after argument was fixed for judgment he did not appear and this was the reason that on 23.06.2017 his bail bond was cancelled and processes under Section 82, 83 of the Cr.P.C. was directed to be issued. On 27.07.2017 the case of Surya Kant Rai was separated from the case of the appellant. Finally, the learned trial judge held the appellant guilty and convicted and sentenced him by the impugned judgment, which has been assailed in the present Appeal. 5. Sri Suraj Narain Yadav, learned counsel for the appellant after placing entire evidences has argued that the impugned judgment of conviction and sentence is required to be set aside primarily on the ground that the prosecution has proceeded in contravention of several statutory provisions contained in the N.D.P.S. Act. He submits that in the case though prosecution has come out with a stand that a search was conducted in the house of the appellant and from the appellant's house two plastic bags containing eight (08) packets of Ganja was recovered, no seizure list was prepared in accordance with law at the place where such seizure was allegedly made. He submits that in the case seizure list was shown to be prepared in the D.R.I. Office, Muzaffarpur. Firstly, as per learned counsel for the appellant there was no seizure from the house of the appellant and even if seizure list was prepared in the D.R.I. Office, Muzaffarpur it was again in contravention of statutory provision since none of the witnesses who were resident of village-Wajidpur, resident of village of the appellant has come forward to become witness to the seizure list. In the case there were two seizure list witnesses. Amongst them one was Police Officer of Bidupur Police Station and another was Chowkidar of village-Kutubpur Saidpur who was resident of a different village. According to learned counsel for the appellant once before the trial court the prosecution had failed to establish the recovery and seizure, subsequent so-called evidence i.e. confessional statement of the appellant recorded under Section 67 of the N.D.P.S. Act as well as confession of one of the another accused, namely: Surya Kant Rai has become meaningless. Besides this, it has been argued that on examination of the confessional statement of the appellant which was got exhibited as Ext. Besides this, it has been argued that on examination of the confessional statement of the appellant which was got exhibited as Ext. 3, it is evident that it was not disclosure made by the appellant. The said confessional statement was shown to be written by one another co-accused namely:-Surya Kant Rai. Only on top of the said confessional statement P.W. 4 has stated that such endorsement was in his writing. According to Sri Suraj Narain Yadav, learned counsel for the appellant on examination of Ext. 3 in between the lines one can draw an inference that virtually the Intelligence Officer/P.W. 4 had put his words into the mouth of the appellant, and as such, even though confession under Section 67 of the N.D.P.S. Act is admissible, in view of the facts disclosed in the said confessional statement, the learned trial court was not required to place any reliance on such statement. 6. Learned counsel for the appellant has argued that entire prosecution has vitiated since statutory provision contained in Section 42 (1) of the N.D.P.S. Act was not complied with by the Investigating Agency. As per Section 42(1) of the N.D.P.S. Act it was mandatorily required that in case of search which was to be conducted after sunset the Searching Officer was required to record a definite reasoning as to why it was necessary to conduct such search even after sunset. In the evidence of P.W. 4/the Intelligence Officer who is complainant nothing has been indicated as to whether he had recorded such finding before proceeding in conducting search during odd hours. In this case it is admitted that the so-called search was conducted in the house of the appellant at 10.00 in the night. He further submits that again the complainant or prosecution has violated the mandatory provision contained in Section 42(2) of the N.D.P.S. Act since even after conducting search after sunset the Investigating Agency had not sent to his superior authority in writing as to why such search was conducted in night. Learned counsel for the appellant on the question of non-compliance of provisions under Section 42(1) as well as Section 42(2) of the N.D.P.S. Act has placed reliance on a judgment of the Hon'ble Supreme Court (KARNAIL SINGH Versus STATE OF HARYANA, (2009) 8 SCC 539 ) and he has specifically referred to paragraph no. Learned counsel for the appellant on the question of non-compliance of provisions under Section 42(1) as well as Section 42(2) of the N.D.P.S. Act has placed reliance on a judgment of the Hon'ble Supreme Court (KARNAIL SINGH Versus STATE OF HARYANA, (2009) 8 SCC 539 ) and he has specifically referred to paragraph no. 21 and 35 of the aforesaid judgment, which is incorporated here-in-below:- "21. Sub-section (1) of Section 42 of the NDPS Act lays down that the empowered officer, if has a prior information given by any person, should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building, etc. he may carry out the arrest or search, without warrant between sunrise and sunset and he may do so without recording his reasons of belief. The proviso to sub-section (1) of Section 42 lays down that if the empowered officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. 35. In conclusion, what is to be noticed is that 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 Sections 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 register concerned 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 noncompliance with requirements of subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with 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 of 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." On the aforesaid grounds taking aid from the judgment of Hon'ble Supreme Court as quoted here-in-above in view of the facts and circumstances that the prosecuting agency had violated the mandatory provisions under the N.D.P.S. Act learned counsel for the appellant has prayed for setting aside the impugned judgment of conviction and sentence. 7. Sri Anshuman Singh, learned Central Government Counsel has vehemently opposed the Appeal primarily on the ground that the appellant had made confession under Section 67 of the N.D.P.S. Act, which is admissible in evidence. He further submits that besides the appellant one another co-accused, namely: Surya Kant Rai also confessed under Section 67 of the N.D.P.S. Act and disclosed that he along with his brother-Manoj Rai (absconder) and appellant were involved in carrying and storing Ganja. As per Sri Anshuman Singh, learned C.G.C. it was a clear cut case of application of Section 8 of the N.D.P.S. Act, and as such, the learned trial judge has rightly held the appellant guilty for offence under Section 20 (ii)(C ) of the N.D.P.S. Act. Sri Anshuman Singh, learned Central Government Counsel has argued that confession of appellant as well as Surya Kant Rai (co-accused) shows that both were conniving with each other and appellant had concealed two plastic bags containing Ganja after obtaining Rs. 1000/-from co-accused Manoj Rai. According to Sri Ansuhman Singh, since the Investigating Officer after getting specific information that huge quantity of Ganja was concealed in the house of the appellant had intimated superior officials, it was compliance of the provision contained in Section 42(1) of the N.D.P.S. Act. According to Sri Anshuman Singh, learned C.G.C. since information was already given to Senior Officials of D.R.I. who were at Patna by P.W. 4/Vigilance Officer it cannot be said that there was violation of provision under Section 42(1) of the N.D.P.S. Act. According to Sri Anshuman Singh, learned C.G.C. since information was already given to Senior Officials of D.R.I. who were at Patna by P.W. 4/Vigilance Officer it cannot be said that there was violation of provision under Section 42(1) of the N.D.P.S. Act. Learned Central Government Counsel on the point of admissibility of confessional statement recorded under Section 67 of the N.D.P.S. Act has referred to number of judgments of the Hon'ble Supreme Court particularly RAJ KUMAR KARWAL Versus UNION OF INDIA and Others, (1990) 2 SCC 409 and KANHAIYALAL Versus UNION OF INDIA, (2008) 4 SCC 668 . On aforesaid grounds it has been argued that there is no need for interference with the impugned judgment of conviction and sentence. 8. Besides hearing learned counsel for the parties, we have minutely examined entire evidences i.e. both oral and documentary evidences and after going through the same we are of the view that since prosecution has contravened the statutory provisions of the N.D.P.S. Act, in any event, judgment of conviction and sentence can not be allowed to continue and same requires interference. However, before proceeding it would be necessary to examine as to what evidence prosecution has brought on record during the trial. During evidence the complainant/Sri Shivendra Satyarthi was examined as P.W. 4. In his evidence he proved seizure list, which was marked as Ext. 1, Panchnama [ marked as Ext. 2], statement of appellant recorded under Section 67 of the N.D.P.S. Act, marked as Ext. 3, statement of another accused-Surya Kant Rai under Section 67 of the N.D.P.S. Act [Ext. 4], envelope containing sample was marked as material Ext. I, test memo with chemical report [Ext. 5], certification under Section 52(A) of the N.D.P.S. Act for storing seized Ganja in Godown (Ext. 6) and he also proved complaint, which was marked as Ext. 7. In his evidence he stated that on 05.12.2008 he was posted as Intelligence Officer, D.R.I., Muzaffarpur and on the same day he had received one secret information that under the jurisdiction of Bidupur Police Station in village-Wajidpur, district Vaishali in the house of appellant Ganja was kept. After getting such information he constituted a team of three other members, namely : Anil Kumar Sharma [P.W. 2], Krishna Nandan Prasad [P.W. 1] and Babu Lal Paswan, T.S. Worker, D.R.I. Muzaffarpur (P.W. 3) including him and simultaneously he gave information to Assistant Director, D.R.I., Patna. After getting such information he constituted a team of three other members, namely : Anil Kumar Sharma [P.W. 2], Krishna Nandan Prasad [P.W. 1] and Babu Lal Paswan, T.S. Worker, D.R.I. Muzaffarpur (P.W. 3) including him and simultaneously he gave information to Assistant Director, D.R.I., Patna. With the team he approached Officer-in-charge of Bidupur Police Station, District-Vaishali for providing security and thereafter, he proceeded with his team along with the Officer-in-charge of Bidupur Police Station and conducted raid in the house of the appellant after knocking his door and from one room of his house two plastic bags containing eight packets Ganja wrapped in polythene was recovered. On being asked appellant informed that the said Ganja was kept by one Manoj Rai. Thereafter, he proceeded to the house of Manoj Rai where Surya Kant Rai (co-accused) was found. The house of Surya Kant Rai was also searched, however no incriminating articles were recovered from his house. The appellant along with Surya Kant Rai and with seized Ganja were carried to D.R.I. Office, Muzaffarpur, where weighment was done and on weighing from eight packets total 70 Kilogram of Ganja was recovered. On 06.12.2008 at 9.00 in the morning seizure list was prepared which was marked as Ext. 1. On the same day Panchnama was also prepared in presence of the appellant, co-accused, member of raiding party. The said Panchnama was got exhibited as Ext. 2. Thereafter, statement of appellant as well as Surya Kant Rai under Section 67 of the N.D.P.S. Act was recorded and he proved both the statements which were in three pages each and marked as Ext. 3 and 4 respectively. From the seized Ganja three samples were taken each of 25 gram and test memo was prepared which was sent for examination to Custom House, Kolkata. During investigation report was received which suggested that the seized article was Ganja and test memo with chemical report was marked as Ext. 5. In respect of Ganja certification was done on 14.12.2012 in presence of Judicial Magistrate and said certification was marked as Ext. 6. He stated in paragraph-18 that in 2008 itself the seized Ganja was deposited in Godown, however, its certification was done in the year 2012. At the time of certification the weight of Ganja had come down to 62.9 Kilograms , however, explanation was given that due to drying the seized Ganja lost its weight. 6. He stated in paragraph-18 that in 2008 itself the seized Ganja was deposited in Godown, however, its certification was done in the year 2012. At the time of certification the weight of Ganja had come down to 62.9 Kilograms , however, explanation was given that due to drying the seized Ganja lost its weight. After completion of investigation he filed complaint petition and he proved the complaint petition, which was marked as Ext. 7. In cross-examination in paragraph25 he stated that Surya Kant Rai was resident of village : Kutubpur Saidpur and Chowkidar was also from the same village. At this juncture it is necessary to indicate that Chowkidar was one of the witnesses to the seizure list as well as witness to the Panchnama. He clarified in paragraph-25 of his cross-examination that the place of occurrence where recovery was made was village-Wajidpur and seizure list was not prepared in Wajidpur. In paragraph-26 of his cross-examination he clarified that seizure list was not prepared on the date of occurrence rather it was prepared on the next day. He further stated in paragraph-28 of cross-examination that on the date of recording statement under Section 67 of the N.D.P.S. Act accused was in his custody and while he was in custody Panchanama was also prepared. In paragraph-32 of his cross-examination he stated that he received secret information on 05.12.2008 at 5.30 in the evening. In paragraph-33 of his cross-examination he stated that on 05.12.2008 at 5.30 evening he got secret information which information he gave to his Senior Officials, however he admitted that he had not preserved the said copy of such intimation. Meaning thereby, that the Investigating Officer admits that it was violation of the provision contained in Section 42(1) of the N.D.P.S. Act. In paragraph-34 of cross-examination he further stated that the house of the appellant was searched in night at 10.00. As per the provisions contained in the N.D.P.S. Act he had not mentioned in the complaint petition regarding urgency for such search. In paragraph-38 he further stated that the articles which were seized were not weighed at the place where it was seized nor seizure list was prepared there. He further in paragraph-40 of his cross-examination stated that on 06.12.2008 at 5.30 P.M. evening the accused persons were formally arrested. In paragraph-38 he further stated that the articles which were seized were not weighed at the place where it was seized nor seizure list was prepared there. He further in paragraph-40 of his cross-examination stated that on 06.12.2008 at 5.30 P.M. evening the accused persons were formally arrested. However, he stated that the accused were apprehended on 05.12.2008 and since then they were in his custody. In paragraph-41 of cross-examination he stated that formality in respect of seizure was done on 06.12.2008 in D.R.I. Office, Muzaffarpur, however, fact remains that alleged recovery was made on 05.12.2008 at 10.00 O' Clock in the night. In paragraph-44 of cross-examination he denied the suggestion that no representative sample was drawn, no seizure was made, nor anything was recovered from the house of the appellant and showing Ganja false case was instituted. On examination of the evidence of P.W. 4 there is no difficulty to come to the conclusion that no special reason was assigned before conducting search in the house of the appellant after sunset, that too, at about 10.00 P.M. ( night ) nor the I.O. complied the provisions contained in Section 42(2) of the N.D.P.S. Act. 9. So far as P.W. 1-Krishna Nandan Prasad is concerned, he on 5.12.2008 was posted as Head Hawaldar, D.R.I., Muzaffarpur. P.W. 2 Anil Kumar Sharma was posted as Intelligence Officer, D.R.I., Muzaffarpur and P.W. 3-Babu Lal Paswan was posted as T.S. Worker, D.R.I., Muzaffarpur. In their evidences they have in sum and substance stated in similar manner like P.W. 4/Shivendra Satyarthi. P.W. 5-Raghunandan Kumar who was Custom Inspector, at the time of evidence was Godown In-charge in Custom Division, Muzaffarpur had come forward to produce register showing entry of seized Ganja and register was marked as Ext. 8. He also proved envelope containing sample, which was marked as material Ext. A and he also proved the destruction Chart as Ext. 9 to show that subsequently the seized Ganja with other materials were destroyed in presence of learned Magistrate. In statement recorded under Section 313 of the Cr.P.C. the appellant has specifically said that forcibly his confessional statement was recorded. A and he also proved the destruction Chart as Ext. 9 to show that subsequently the seized Ganja with other materials were destroyed in presence of learned Magistrate. In statement recorded under Section 313 of the Cr.P.C. the appellant has specifically said that forcibly his confessional statement was recorded. Since learned Central Government Counsel has emphasized that the appellant can be held guilty only on the basis of confessional statement recorded under Section 67 of the N.D.P.S. Act, we propose to re-produce the statement of the appellant recorded under Section 67 of the N.D.P.S. Act, which is quoted as follows:- "Statement of Sri Ram Babu Paswan, S/o Late Ram Sundar Paswan, Age-38 Yrs. Approx, resident of Vill.-Bajidpur, Post-Bajidpur Saidat, P.S.-Bidupur, Distt.-Vaishali recorded under Section 67 of the NDPS Act, 1985 recorded on 6.12.2008 in connection of Case No.11/2008 dated 05.12.2008 eSa jke ckcw ikloku lqiq=&Lo0 jkelqUnj ikloku mez 38 o"kZ yxHkx xzk0&okftniqj] Fkkuk&fonqiqj ftyk& oS'kkyh dk jgus okyk gWw A vkt fnukad 06&12&2008 dks eSa ;g c;ku nsuk pkgrk gWw fd fnukad 05&12&2008 dks jkr ds 10 cts ds yxHkx esa dqN vf/kdkjh yksx ,oa dqN onhZ/kkjh vf/kdkjh yksx esjs ?kj tks okftniqj esa gS esa vk;s vkSj mUgksusa [kqn dks jktLo vklwpuk funs'kky; eqtQ~Qjiqj ,oa fonqiqj Fkkuk dk vf/kdkjh crk;k vkSj ;g eq>s crk;k fd xqIr lqpuk feyh gS fd vki ds ?kj esa xkatk j[kk gqvk gS vkSj mUgksusa esjs ?kj ds tkWp ds fy, dgk A esjs lkeus esjs ?kj tks Qql dk gS mlds ihNs esa nks dejk gS tks ySUVj rd iDdk dk cuk gqvk gS mu nksuksa dejks esa ls mRrj okys dejs ls nks IykfLVd dk cksM+k ftlesa dqN xkatk iSdsV ds :i esa iSd fd;k gqvk Fkk ik;kA vf/kdkfj;ksa us esjs lkeus ,oa iqfyl vf/kdkfj;ksa ds mifLFkfr esa nksuksa IykfLVd cksM+ks dks [kksyk ftlesa ls vkB iSdsV xkatk tks lHkh iSdsV iksyksFkhu esa yisVk gqvk Fkk vkSj mldks tqV fd jLlh ls cka/kk x;k Fkk cjken fd;k x;k mlds ckn mUgksusa mDr cjken xkats ds ekfyd ds ckjs esa iqNk A eSusa crk;k fd mDr xkatk ds ekfyd Jh eukst jk; lqiq= Lo0 txnh'k jk; tks xzk0 $ iks0 dqrqciqj lSniqj Fkkuk& fonqiqj ftykⓈ'kkyh gS A eSusa ;g Hkh crk;k fd bl dke esa eukst jk; cMs HkkbZ Jh lq;ZdkUr jk; Hkh 'kkfey gS A mlds ckn vf/kdkjh yksxksa ds dgus ij eSusa mUgsa eukst jk; ds ?kj tks esjs ?kj ls 100 ehVj ds yxHkx gS ogkW ys x;k ogkW ij mDr ?kj ds ryk'kh ij eukst jk; ugha ik;k x;k ysfdu muds cMs HkkbZ lq;ZdkUr jk; ik;s x;s A iqNrkN ds nkSjku Jh lq;ZdkUr jk; us ;g crk;k fd eukst jk; fdlh dke ls gkthiqj x;s gS A lq;ZdkUr jk; iqNus ij crk;s fd cjken xkatk dk ekfyd eukst jk; gS vkSj eS mudk bl dke esa lg;ksx djrk gwW A mlds ckn vf/kdkfj;ksa us jkr gksus fd otg ls vkSj fctyh fd lqfo/kk u gksus ls lqj{kk ds n`f"Vdks.k ls iqfyl vf/kdkfj;ksa ds mifLFkfr ,oa lgefr ls eky cjken fd;k x;k xkatk ,ao nksuksa O;fDr;ksa lfgr jktLo vklwpuk funs'kky; eqtQjiqj ds dk;kZy; esa ys vk;s A esjs] lw;ZdkUr jk; vkSj iqfyl vf/kdkfj;ksa ds lkeus cjken fd, x;s dqy vkB iSdsV xkatk dk otu fd;k x;k tks dqy 70 ¼lRrj½ fdyks xzke ik;k x;k mlds ckn vf/kdkfj;ksa us mDr xkatk tCr dj fn;k vkSj tCrh eseksa ,d izfr eq>s lkSaih A tCr xkatk ls ge ykxksa ds lkeus 25&25 xzk0 ds rhu uequk fudkyk x;k mldks fyQkQk esa j[kdj lhy can fd;k x;k ml fyQkQs ij eSusa vaxqBk dk fu'kku vkSj lq;ZdkUr jk; us gLrk{kj fd;k mlds ckn cps gq, xkatk dks mlh nksuksa IykfLVd ds cksM+s esa lhy can dj fn;k x;k A mlds ckn vf/kdkfj;ksa ds iwNus ij eSa ;g dguk pkgrk gwW fd mDr tCr xkats dks esjs ?kj esa nl fnu igys eukst jk; us j[kok;k Fkk vkSj blds fy, eq>s 1000 :0 nsus dh ckr Fkh A vkxs iwNus ij eSa ;g dguk pkgrk gWw fd ;g eky dgkW ls vk;k Fkk vkSj fdls cspuk Fkk bldh tkudkjh eq>s ugha gS A blds ckjs esa eukst jk; vkSj lq;ZdkUr jk; crk ldrs gS A eSusa ;g xyrh igyh ckj tku cq>dj iSls ds ykyp esa fd;k pWwfd eSa ,d xjhc vkneh gwW vkSj esjs lkr cPps gSA iwNus ij eS crkuk pkgrk gw fd eSa vui<+ gwW A vkxs eSa dguk pkgrk gwW fd eSus ;g xyr dke Jh eukst jk; ds dgus vkSj /kedkus ij eSusa fd;k eSa ,d xjhc vkneh gwW A blfy, ykpkjh vkSj Hk; ls eSusa ;g dke fd;k blfy, eq>s ekQ dj fn;k tk, A vkxs dguk pkgrk gWw fd cjken fd, x, xkatk dh tkudkjh ugha gS A iSdsV ij fy[kk fodkl lkgc vkSj cqjhckck ds ckjs esa eq>s tkudkjh ugha gS A eSusa mijksDr c;ku iw.kZ ekufld larqyu esa fn;k gS tks fcYdqy lgh gS A c;ku ds nkSjku vf/kdkfj;ksa us esjs lkFk dksbZ xyr O;ogkj ugha fd;k vkSj uk gh tku&eky dk uqdlku igqWpk;kA c;ku 'kkafriq.kZ ekgkSy esa lai~Uu gqvk pwWfd eSa T;knk i<+k fy[kk ugha gWw] blfy, esjk c;ku tks lq;ZdkUr jk; lqiq= Lo0 txnh'k jk; us fy[kk ftls eq>s i<+dj lquk fn;k x;k gS A mls lgh ikdj eSa vius ckW;k vxqWBk dk fu'kku cuk jgk gwWA 10. Fact remains that the said confessional statement was neither written by the appellant nor recorded by Intelligence Officer/P.W. 4 or any official writer. The scribe of such confession was one of the another accused namely:-Surya Kant Rai. On going through the contents of the so-called confessional statement there is no difficulty in coming to the conclusion that the said confession is not truthful. The language used in the said confession depicts that it was not disclosure made by the appellant since the appellant was completely illiterate and he had put his L.T.I. on the so-called confessional statement. On examination of the aforesaid confessional statement, we are of the opinion that the same appears to be doubtful. Besides this, only on the basis of confessional statement whether admissible or not admissible, it would be difficult to hold the appellant guilty. In the case prosecution has miserably failed to establish that Ganja was recovered and seized from the house of the appellant. Only oral evidence of official witnesses may not suffice particularly in view of the fact that in the case seizure list was shown to be prepared in D.R.I. Office, Muzaffarpur. It is also difficult to place reliance on the seizure list or even on Panchnama particularly in absence of the so-called independent witnesses. The independent witnesses were none else but one was the Police Officer i.e. Sub Inspector of Bidupur Police Station and another was Chowkidar of different village. Even though those witnesses were not from the same village, they had not come forward to support either Panchnama or seizure list. 11. In view of the aforesaid facts and circumstances we are satisfied that prosecution has violated the mandatory provisions contained under Section 42(1) as well as Section 42(2) of the N.D.P.S. Act. Besides this, seizure appears to be doubtful. 12. In view of the facts and circumstances, there is no reason to allow conviction of the appellant. Accordingly, judgment of conviction passed by Sri Prabhakar Mishra, learned 2nd Addl. Sessions Judge, Muzaffarpur dated : 17th September, 2017 and sentence dated : 23.09.2017 in D.R.I. Case No. 11 of 2008 is hereby set aside and the Appeal is allowed. 13. The appellant is in custody and since conviction and sentence has been set aside, it is hereby directed to release him forthwith, if not required in any other case.