JUDGMENT : Heard learned counsel for the appellant, Mr. Sarju Prasad assisted by Mr. Atmaram Choudhary, Advocates as well as learned counsel for the State, Mr. Pankaj Kumar, learned Additional Public Prosecutor. 2. The instant Criminal Appeal has been preferred against the judgment of conviction dated 27.02.2004 and order of sentence dated 05.03.2004 passed by the learned 1st Additional Sessions Judge, Bokaro, in N.D.P.S. Case No.01 of 1999, whereby the sole appellant has been convicted for offence committed and punishable under Section 20 (b) (i) read with section 8 of the Narcotic Drugs and Psychotropic Substance Act (N.D.P.S. Act) 1985 and awarded sentence of rigorous imprisonment for a period of two years and also a fine of Rs.10,000/- and in default of payment of fine to undergo further simple imprisonment for a period of six months. 3. The prosecution case is based upon prosecution report submitted in a proforma under Section 78(4) of the Act before the Magistrate, which has been proved and marked as exhibit-4 in the present case, stating therein that on secret information, informant Ramadhar Sharma (P.W.3), Sub-Inspector of Excise, Chas Circle along with other excise officials raid the shop of the accused situated at Anand Bazar, Fushro, under P.S. Bermo, District-Bokaro and recovered contraband, ganja worth 40 grams, 20 grams kept in plastic bag and 20 grams were found kept in 10 purias, each having 2 grams and a five rupees note in the plastic bag. After such recovery the Excise officials have prepared a seizure list and obtained the signature of two independent witness, in whose presence the said recovery was made. A prosecution report has thereafter been drawn up, under the signature of Sub-Inspector, Excise, Chas Circle. The informant has forwarded the accused to the court and also send the sample of the seized material for chemical test before the expert. 4. On the basis of the prosecution report, a case was registered under Section 20 (b) (i) read with Section 8 (c) of N.D.P.S. Act, vide N.D.P.S. Case No. 01 of 1999, dated 26.08.1999. 5. The cognizance of the offence has been taken vide order dated 26.08.1999 and charge has been framed against Dinesh Prasad Gupta under Section 27 of N.D.P.S. Act on 10.01.2000 and under Section 20/8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 on 18.11.2003, to which appellant/accused has pleaded his innocence and thus he was put under trial. 5. The cognizance of the offence has been taken vide order dated 26.08.1999 and charge has been framed against Dinesh Prasad Gupta under Section 27 of N.D.P.S. Act on 10.01.2000 and under Section 20/8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 on 18.11.2003, to which appellant/accused has pleaded his innocence and thus he was put under trial. 6. The prosecution, in order to prove its case, has examined altogether four witnesses and also exhibited documentary evidence. Narsingh Kumar Pathak (A.S.I. of Excise) has been examined as P.W.1, Baban Prasad (constable, Excise department) has been examined as P.W.2, Ramadhar Sharma (S.I., Excise department and investigating officer in this case) has been examined as P.W.3 and Sarbjit Narayan Jha (S.I., Mobile force Excise) has been examined as P.W.4. 7. Seizure list in the writing and signature of P.W.3, Ramadhar Sharma has been proved and marked as Exhibit-1, signature of the accused, Dinesh Prasad Gupta on back of the seizure list has been proved and marked as Exhibit-2, carbon copy of forwarding letter before chemical examiner, written by P.W.3, Ramadhar Sharma has been proved and marked as Exhibit-3, Prosecution report in the format as provided under Section 78(4) of the Excise Act has been proved and marked as Exhibit-4 and chemical examination report of chemical examiner, has been proved by P.W.4, Sarbjit Narayan Jha, a formal witness has been marked as Exhibit-5. The ganja sealed has been produced before the Court has been proved and marked as Material Exhibit-1. 8. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C., on 21.11.2002, to which appellant/accused has categorically submitted, that nothing has been recovered from his possession and he has been falsely implicated in this case. 9. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has passed the impugned judgment of conviction and order of sentence. Being aggrieved at and dissatisfied with the same, the present criminal appeal has been preferred by the appellant before this Hon’ble Court, which was admitted on 09.04.2004, and is being heard by this Hon'ble Court. 10. Heard, learned counsel for the appellant, Mr. Sarju Prasad assisted by Mr. Atmaram Choudhary, Advocates. Being aggrieved at and dissatisfied with the same, the present criminal appeal has been preferred by the appellant before this Hon’ble Court, which was admitted on 09.04.2004, and is being heard by this Hon'ble Court. 10. Heard, learned counsel for the appellant, Mr. Sarju Prasad assisted by Mr. Atmaram Choudhary, Advocates. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted, that apart from material contradiction in the evidence of prosecution witnesses, there are also vital lacuna, in procedural aspect of the case. Learned counsel for the appellant has further submitted, that the excise officer has not followed the procedure as envisaged under Section 42 of the N.D.P.S. Act, in its letter and spirit. Learned counsel for the appellant has further submitted, that Section 42 of the N.D.P.S. Act, 1985 deals with power of entry, search, seizure and arrest without warrant or authorisation. Learned counsel for the appellant has further submitted, that the excise officer has not followed the procedure as envisaged under Section 42 of the N.D.P.S. Act, in its letter and spirit. Learned counsel for the appellant has further submitted, that Section 42 of the N.D.P.S. Act, 1985 deals with power of entry, search, seizure and arrest without warrant or authorisation. Section 42 N.D.P.S. act reads as follows :- (1) Any such officer(being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or 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 or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act 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 such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to 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 or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act; and (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 further that] if such officer has reason to believe that a search warrant or authorisation 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”. Learned counsel for the appellant has further submitted, that from the evidence brought on record by prosecution, procedure envisaged under Section 42 has not been complied with and as such, in view of the judgment as reported in (2016) 14 SCC 358 Darshan Singh Vs. The State of Haryana, the appellant deserves to be acquitted on account of non-compliance of the mandatory provisions as contained in Section 42 (1) of N.D.P.S. Act. Learned counsel for the appellant has further submitted, that Section 42, sub-clause (2) of N.D.P.S. Act says that :- “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”. Learned counsel for the appellant has further submitted, that in the present case there is completely non-compliance of section 42, sub-clause (2) of the N.D.P.S. Act, as no information was given to the superior officer within seventy-two hours as it appears from the record of the case. Learned counsel for the appellant has relied upon the judgment as reported in (2009) 8 SCC 539 Karnail Singh Vs State of Haryana. Learned counsel for the appellant has further submitted, that the appellant is entitled for benefit of doubt and be acquitted by this Court. Learned counsel for the appellant has drawn attention of this court towards section 50 of the N.D.P.S. Act, which deals with condition under which search of person shall be conducted. Learned counsel for the appellant has drawn attention of this court towards of Section 50 clause (1), which reads as follows :- “When any officer duly authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate”. Learned counsel for the appellant has further submitted, that provision of section 50 (1) of the N.D.P.S. Act has not been complied by the prosecution and as such, in view of the judgment as reported in 2018 (2) JLJR 378 (SC) Arif Khan @ Agha Khan Vs. Learned counsel for the appellant has further submitted, that provision of section 50 (1) of the N.D.P.S. Act has not been complied by the prosecution and as such, in view of the judgment as reported in 2018 (2) JLJR 378 (SC) Arif Khan @ Agha Khan Vs. State of Uttarakhand, the appellant is entitled for acquittal, as the Hon'ble Supreme Court has held in the case of Vijaysinh Chandubha Jadeja as reported in 2011 SCC 609 : 2011 JLJR(SC) 84 that :- “the requirement of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under under Section 50 to be searched only before a Gazetted Officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance. It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate”. Learned counsel for the appellant has further submitted, that non-compliance of the mandatory procedure, prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and as such, the appellant is entitled for benefit of doubt. Learned counsel for the appellant has drawn attention of this court towards sub-Section (6) of section 50 of this Act, which reads as follows :- “After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within a seventy-two hours send a copy thereof to his immediate official superior”. Learned counsel for the appellant has drawn attention of this court towards sub-Section (6) of section 50 of this Act, which reads as follows :- “After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within a seventy-two hours send a copy thereof to his immediate official superior”. Learned counsel for the appellant has further submitted, that in this case from the material brought on record, it appeared that no such compliance has been made within seventy-two hours, as such, there is a violation of sub-section (6) of Section 50 of the NDPS Act. Learned counsel for the appellant has drawn attention of this court towards sub-sections 2, 3 and 4 of section 52-A of the NDPS Act, which reads as follows :- 52-A. Disposal of seized narcotic drugs and psychotropic substances.—(2) where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in sub-section (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of [such drugs, substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court tying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence].” Learned counsel for the appellant has further submitted, that the seized ganja was kept in a bottle, which has been produced in the Court and marked as Material Exhibit-1 but from perusal of evidence of informant, P.W.3, Ramadhar Sharma at page no.3, it is apparent that the seized material is not the same, which has been produced in the Court and has been marked as Material Exhibit-1. The informant has categorically stated, that after seizure of the material, the same was kept in bottle, which was sealed and wrapped with a paper bearing signature of two seizure witnesses, appellant and the investigating officer-cum-informant, but during cross-examination P.W.3, Ramadhar Sharma has categorically admitted that the paper wrapped in a bottle containing the seizure material does not bears the signature of the appellant. Learned counsel for the appellant has drawn attention of this court towards prosecution witnesses by submitting that none of the seizure witnesses have been examined in the present case. The learned counsel for the appellant has drawn the attention of this court towards the case of Gorakh Nath Prasad Vs. State of Bihar as reported in (2018) 2 SCC 305 , wherein the Hon’ble Supreme Court has acquitted the appellant as the seizure witness has turned hostile in the aforesaid case. The learned counsel for the appellant has drawn the attention of this court towards the case of Gorakh Nath Prasad Vs. State of Bihar as reported in (2018) 2 SCC 305 , wherein the Hon’ble Supreme Court has acquitted the appellant as the seizure witness has turned hostile in the aforesaid case. Seizure witness has not been examined and as such, in view of the admission made by informant-investigating officer(P.W.3) Ramadhar Sharma, that seizure material, which has been proved and marked as Material Exhibit-1, does not bears the signature of appellant, thus learned counsel for the appellant has submitted, that the same seized article has not been produced in the Court and the material, which has been produced in court and marked as Material Exhibit-1 is different from the original one, and as such, in view of judgment in the case of Gorakh Nath Prasad supra, where Hon'ble Supreme Court has acquitted the accused persons from alleged recovery of contrabands, the prosecution has to first establish prima facie case of genuine recovery of contrabands from the possession of the accused, before burden of proof is shifted to accused and second in absence of production of seized materiel in the court as Materiel Exhibit, only on the basis of expert report, in absence of any confirmation either of seized material as ganja, the benefit of doubt may be given to the accused. Learned counsel for the appellant has further submitted that the investigating officer has prepared the specimen from the seized material and send the same before chemical examiner at forensic science laboratory, without obtaining any permission from the learned Special Judge or Magistrate as contemplated under the act. Learned counsel for the appellant has further submitted that the investigating officer has prepared the specimen from the seized material and send the same before chemical examiner at forensic science laboratory, without obtaining any permission from the learned Special Judge or Magistrate as contemplated under the act. Learned counsel for the appellant has further submitted, that articles are seized as per section 100 Cr.P.C. As per the procedure laid down under section 100 Cr.P.C. the sample of the seized article is to be prepared in three packets, one to be send for chemical examination before the forensic science laboratory after due permission from the Court or Magistrate, second is to be kept in sealed condition before the Court, so as to give an opportunity to the appellant, in case the accused challenge the chemical examination report issued by the forensic science laboratory, so as to examine the second packet at the cost of appellant/accused and third packet is to be kept in the Court so as to prove that these are the materials, which have been used for obtaining chemical examiner report from the forensic science laboratory. Learned counsel for the appellant has thus submitted, that the prosecution has miserably failed in preparing the sample and as such, the report of the chemical examiner in the present case, it is not beyond reasonable doubt against the appellant. Learned counsel for the appellant has further submitted, that the prosecution has also not complied, the provisions as stated under Section 52 of the NDPS Act which deals with disposal of persons arrested and articles seized. Learned counsel for the appellant has drawn attention of this court towards sub-section (3) of section 52 of the NDPS Act which reads as follows :- “Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to- (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under section 53”. Learned counsel for the appellant has drawn attention of this court towards evidence of P.W.3, Ramadhar Sharma, who has admitted that seized articles were kept in his personal capacity and he has brought the material in the court, which has been marked as Material Exhibit-1. Learned counsel for the appellant, Mr. Learned counsel for the appellant has drawn attention of this court towards evidence of P.W.3, Ramadhar Sharma, who has admitted that seized articles were kept in his personal capacity and he has brought the material in the court, which has been marked as Material Exhibit-1. Learned counsel for the appellant, Mr. Sarju Prasad has thus submitted, that under the above circumstances appellant is entitled for acquittal of the charge and conviction under section 20 (b) (i) read with section 8 of NDPS Act. 11. Heard, learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor. Learned counsel for the State has submitted that learned trial Court has passed the impugned judgment of conviction and order of sentence on the basis of the material available on record. Learned counsel for the State has further submitted, that initially when the material was seized from appellant, who was carrying 20 grams of ganja in a polythene holding in his right hand and 10 packets of 2 grams of ganja in right pocket of his pant and on the basis of physical verification, the informant P.W.3, Ramadhar Sharma has found the article to be contraband i.e. ganja as these official are experts, who can examine the article on the basis of there experience but to ascertain the same, sample of seized materials are sent before the chemical examiner at forensic science laboratory and that has been confirmed to be ganja and as such, the learned trial Court has rightly passed the impugned judgment of conviction and order of sentence. Learned counsel for the State has further submitted, that violation of the procedure as pointed out by learned counsel for the appellant is not fatal. Learned counsel for the State has further submitted, that so far the submission of the learned counsel for the appellant with regard to preparation of sample is concerned, that is not fatal for the prosecution case as that has not been defined under the act and as such, appellant cannot be acquitted on that ground. Learned counsel for the State has further submitted, that appellant has rightly been convicted by the learned trial court and as such, does not warrant any interference from this Hon'ble Court. 12. Heard, learned counsel for the appellant Mr. Sarju Prasad assisted by Mr. Atmaram Choudhary, Advocates as well as learned counsel for the State, Mr. Learned counsel for the State has further submitted, that appellant has rightly been convicted by the learned trial court and as such, does not warrant any interference from this Hon'ble Court. 12. Heard, learned counsel for the appellant Mr. Sarju Prasad assisted by Mr. Atmaram Choudhary, Advocates as well as learned counsel for the State, Mr. Pankaj Kumar, learned Additional Public Prosecutor and perused the materials available on record including evidence of four prosecution witnesses, five exhibits, one Material Exhibit and statement of the appellant recorded under Section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence brought on record, P.W.1, Narsingh Kumar Pathak, Assistant Sub-Inspector, excise mobile force, who has submitted that the investigating officer, Ramadhar Sharma (P.W.3) has taken him and other excise personnels in a shop and before entering into the shop, they have given their search to the people standing there, but their names have not been mentioned in the seizure list. This witness has also stated that on the seizure list, signature of the accused was taken. Baban Prasad, constable excise department has been examined as P.W.2. This witness has stated that, seized material was kept in a bottle with slip, which has been brought by the Sub-Inspector, Ramadhar Sharma, who is present in the Court. Ramadhar Sharma, informant-cum-investigating officer of the case has been examined as P.W.3. This witness has stated that, he got an information about illegal sale of ganja from the shop of Dinesh Prasad Gupta at Anand Bazar at Fushro market in the District of Bokaro and on the basis of that, he has made a search and seized ganja and prepared a seizure list, which also bears the signature of Tambu Tiwari and Jay Kumar Mahto as seizure witnesses. The copy of seizure list has been given to the witnesses as well as accused, who has put his signature on the back of seizure list. Informant has further stated that after preparing the sample, he send the same before the forensic science laboratory, Patna and another was kept with him, which he has brought today in the Court. The search article has been marked as Material Exhibit-1. Informant has further stated that after preparing the sample, he send the same before the forensic science laboratory, Patna and another was kept with him, which he has brought today in the Court. The search article has been marked as Material Exhibit-1. This witness has proved the forwarding letter before the chemical examiner, forensic science laboratory, Patna and has been marked as exhibit-3 and the prosecution report written and prepared by him, has been proved and marked as exhibit-4. This witness has admitted during cross-examination that, he has send the seized article for chemical examination without obtaining permission from the learned trial Court and the seized article, which has been proved and marked as Material Exhibit-1 does not contain the signature of the appellant on its paper, wrapped over the same. Sarbjit Narayan Jha, Sub-Inspector Excise has been examined as P.W.4 and he has proved the report of the forensic science laboratory, which has been marked as exhibit-5, being a formal witness as the technician or chemical analyst of the forensic science laboratory has not been examined. This Court has found that, Ramadhar Sharma, P.W.3 is the informant-cum-investigating officer of the case. The act of Ramadhar Sharma is deprable, as being informant-cum-investigating officer of the case. From perusal of the material available on record, it appears to the Court, that the prosecution and the investigation has been conducted by the same person, who is informant of the case. The Hon'ble Supreme Court in the case of Mohan Lal vs. The State of Punjab as report in 2018 (3) JLJR 393 (SC) has held :- “if the informant were to be made the IO, it was bound to reflect on the credibility of the prosecution case -a fair investigation, which is but the very foundation of fair trial, necessarily postulates that informant and investigator must not be the same person-justice must not only be done, but must appear to be done also-any possibility of bias or a predetermined conclusion has to be excluded-this requirement is all the more imperative in laws carrying a reverse burden of proof”. In the said judgment the Hon'ble Supreme Court has emphasized that under sections 33 and 54 of the NDPS Act, unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof, but that cannot mean that the moment an allegation is made and the FIR recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more presumption is rebuttable. The Hon'ble Supreme Court has dealt section 55 of the NDPS Act, as follows :- “8. The view taken by the High Court that under section 55 of the NDPS Act, that PW-1 was empowered to keep the case property and sample in his individual safe custody is completely erroneous on the face of it. The provision reads as follows : “55. Police to take charge of articles seized and delivered-An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” (emphasis added) A plain reading of the provision makes it manifest that it is the duty of the police officer to deposit the seized material in the police station malkhana. 9. Standing Order No.1 of 88 issued by the Narcotics Control Bureau in clause 1.13 reads as follows : “Mode and time limit for dispatch of sample to Laboratory. The samples should be sent either by insured post or through special messenger duly authorised for the purpose. Dispatch of samples by registered post or ordinary mail should not be resorted to. Samples must be dispatched to the Laboratory within 72 hours of seizure to avoid any legal objection.” (emphasis added) The Drug Law Enforcement-Field Officer’s Handbook issued by the Narcotics Control Bureau also provides that : “28. Dispatch of samples by registered post or ordinary mail should not be resorted to. Samples must be dispatched to the Laboratory within 72 hours of seizure to avoid any legal objection.” (emphasis added) The Drug Law Enforcement-Field Officer’s Handbook issued by the Narcotics Control Bureau also provides that : “28. Were the seized goods and samples deposited in the Malkhana at the earliest opportunity after seizure, an acknowledgement receipt obtained from the Malkhana-in-Charge? 29. Were the samples sent to the designated laboratory for analysis and report within 72 hours of seizure?” In Noor Aga vs. State of Punjab, (2008) 16 SCC 417 , under the NDPS Act, it was held : “91. The logical corollary of these discussions is that the guidelines such as those present in the Standing Order cannot be blatantly flouted and substantial compliance therewith must be insisted upon for so that sanctity of physical evidence in such cases remains intact. Clearly, there has been no substantial compliance with these guidelines by the investigating authority which leads to drawing of an adverse inference against them to the effect that had such evidence been produced, the same would have gone against the prosecution.” 10. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden of proof under Sections 35 and 54. But that cannot be understood to mean that the moment an allegation is made and the F.I.R. recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable. Section 35 (2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. The stringent provisions of the NDPS Act, such as Section 37, the minimum sentence of ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities. 11. The case of the prosecution cannot be allowed to rest on a preponderance of probabilities. 11. A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution, would be a hollow promise if the investigation in a NDPS case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. 12. That investigation in a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on part of the accused was noticed in Babubhai vs. State of Gujarat, (2010) 12 SCC 254 as follows : “32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer “is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth”. 13. The duty of the prosecution under the NDPS Act, considering the reverse burden of proof, was noticed in Noor Aga (supra) observing :- “58……An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. 13. The duty of the prosecution under the NDPS Act, considering the reverse burden of proof, was noticed in Noor Aga (supra) observing :- “58……An initial burden exists upon the prosecution and only when it stands satisfied, would the legal burden shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of the accused on the prosecution is “beyond all reasonable doubt” but it is “preponderance of probability” on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established. 59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.” Furthermore, the sample not having been deposited in the malkhana, coupled with non-examination of the private witnesses, an adverse inference was drawn therein against the prosecution. This principle has been reiterated in Bhola Singh vs. State of Punjab, 2011 (11) SCC 653 . 14. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion. 15. The discussion in the present case may not be understood as confined to the requirements of a fair investigation under the NDPS Act only carrying a reverse burden of proof. Baldev Singh (supra) related to a prosecution under Section 165A of the IPC. Nonetheless, it observed that if the informant were to be made the investigating officer, it was bound to reflect on the credibility of the prosecution case. Megha Singh (supra) concerned a prosecution under the Terrorist and Disruptive Activities (Prevention) Act, 1985. It was held that the Head Constable being the complainant himself could not have proceeded with the investigation and it was a practice, to say the least, which should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation. Rajangam (supra) was a prosecution under the NDPS Act, an objection was taken that PW-6 who apprehended the accused could not have investigated the case. Upholding the objection, relying on Megha Singh (supra) the accused was acquitted. The view taken by the Madras High Court in Balasundaran vs. State, 1999 (113) ELT 785 (Mad.), was also noticed as follows : “16. Learned Counsel for the appellants also stated that P.W.5 being the Inspector of Police who was present at the time of search and he was the investigating officer and as such it is fatal to the case of the prosecution. P.W. 5, according to the prosecution, was present with Pws 3 and 4 at the time of search. In fact, P.W.5 alone took up investigation in the case and he had examined the witnesses. No doubt the successor to P.W. 5 alone had filed the charge sheet. But there is no material to show that he had examined any other witness. It therefore follows that P.W. 5 was the person who really investigated the case. P.W. 5 was the person who had searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. But there is no material to show that he had examined any other witness. It therefore follows that P.W. 5 was the person who really investigated the case. P.W. 5 was the person who had searched the appellants in question and he being the investigation officer, certainly it is not proper and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings will be vitiated.” 17. Hardip Singh vs. State of Punjab, 2008 (8) SCC 557 concerned a prosecution under the NDPS Act. The contention was that the Inspector, PW-5 being the complainant himself would be an interested person and should not have been made the investigating officer. The argument was repelled relying on State rep. By Inspector of Police, Vigilance and Anti-Corruption, Tiruchirapalli, Tamil Nadu vs. V. Jayapaul, 2004 (5) SCC 223 observing as follows : “6….We find no principle or binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased.” Significantly, V. Jayapaul, (supra) related to a prosecution under the Prevention of Corruption Act which sought to distinguish Megha Singh, (supra) on its facts. The learned counsel for the appellant has further submitted that in the case of Vijay Jain Vs. State of Madhya Pradesh as reported in (2013) 14 SCC 527 , the Hon'ble Supreme Court reiterated the necessity of production of contraband substances seized from the accused before the trial court to establish that the contraband substances seized from the accused tallied with the samples sent to the FSL. It was held that mere oral evidence to establish seizure of contraband substances from the accused is not sufficient. It was held as under :- “10. It was held that mere oral evidence to establish seizure of contraband substances from the accused is not sufficient. It was held as under :- “10. On the other hand, on a reading of this Court's judgment in Jitendra Vs. State of M.P., (2004) 10 SCC 562 , we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary fro the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is not explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in Ashok vs. State of M.P., (2011) 5 SCC 133, this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial Court as material exhibit and there was no explanation for its non-production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.” This Court is in complete consonance with the views of the learned counsel for the appellant with respect to violation of section 42 of NDPS Act as no information has been given to the superior officer, which is mandatory procedures contemplated under Section 42 of the NDPS Act and the judgment relied by the learned counsel for the appellant in case of Darshan Singh vs. State of Haryana as reported in (2016) 14 SCC 358 is fully applicable. This Court has also taken judicial notice with respect to non-compliance of section 50 of the NDPS Act as submitted by learned counsel for the appellant relying upon the judgment reported in 2018 (2) JLJR 378 (SC) Arif Khan @ Agha Khan Vs. State of Uttarakhand. This Court has also taken judicial notice with respect to non-compliance of section 50 of the NDPS Act as submitted by learned counsel for the appellant relying upon the judgment reported in 2018 (2) JLJR 378 (SC) Arif Khan @ Agha Khan Vs. State of Uttarakhand. This Court has also taken judicial notice of the judgment of Kishan Chand vs. State of Haryana as reported in (2013) 8 SCC 502 particularly in para-17 and 24, which clarified that section 42 and section 57 of the NDPS Act are not interlinked or interdependent and the case of Hamidhbai Azambhai Malik vs. State of Gujarat as reported in AIR 2009 in SC 1378, were some relaxation has been given to the police officer, who is on regular patrolling or investigating some other offences, so far compliance of section 42 of the NDPS Act is concerned. From perusal of the evidence brought on record, this Court is of the opinion that the prosecution has miserably failed, in view of the aforementioned judgments, in compliance of the mandatory provisions as contemplated under section 42 of the NDPS Act. This Court has also of the view that seizure witnesses have not been examined in this case and Hon'ble Supreme Court in case of Gorakh Nath Prasad Vs. State of Bihar as reported in (2018) 2 SCC 305 has extended the benefit of doubt to the appellant, where the seizure witness has turned hostile and the Material Exhibit-1 is also not free from reasonable doubt as appears from the evidence of P.W.3, Ramadhar Sharma. Under the aforesaid circumstances, as discussed above and relying upon the judgment of the Hon'ble Supreme Court and that prosecution has miserably failed in discharging the duty as contemplated under the NDPS Act, the appellant is hereby acquitted of charge and conviction under section 20 (b) (i) read with section 8 of the N.D.P.S. Act. The impugned judgment of conviction and order of sentence is not sustainable in the eyes of law. Accordingly, the appellant, who is on bail is discharged from liability of his bail bond and the fine amount, if already deposited by the appellant before the learned trial Court shall be returned to the appellant. 13. The present Appeal is allowed. 14. Let the lower court record be sent down to the court below. 15. Accordingly, the appellant, who is on bail is discharged from liability of his bail bond and the fine amount, if already deposited by the appellant before the learned trial Court shall be returned to the appellant. 13. The present Appeal is allowed. 14. Let the lower court record be sent down to the court below. 15. Before parting with the judgment, it is necessary to send a copy of this order before the State authority. Learned Advocate General, who is present in the Court has assured this Court, that the procedural lacuna, which has been committed by the Excise Officers by not following the procedures as contemplated in the act shall be rectified by convening a meeting of The Principle Secretary Department of Home, Jail and Disaster Management, Government of Jharkhand, The Secretary, Department of Excise, Government of Jharkhand and Director Prosecution, Government of Jharkhand and shall communicate the recourse taken for this purpose to this Hon'ble Court within a period of four weeks. 16. The Office is directed to put up this case on 15th of December, 2018. 17. Let a copy of this judgment be communicated to the office of learned Advocate General, Home Secretary, Secretary Excise and the Director of prosecution, Jharkhand and learned Additional Public Prosecutor, Mr. Pankaj Kumar for compliance and necessary action to be taken in this regard.