JUDGMENT : By the instant appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.), accused-appellant has assailed judgment dated 14th of May 2015, passed by Special Judge, NDPS Cases, Pratapgarh (for short, ‘learned trial Court’). The learned trial Court by the impugned judgment, convicted appellant for offence under Section 8/21, 8/29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’) and for offence under Section 3 read with Section 25 of the Arms Act, 1959 and handed down following sentences: U/s. 8/21 NDPS Act 14 years’ rigorous imprisonment with fine of Rs.2 Lakhs, in default of payment of fine to further undergo one year’s R.I. U/s. 8/29 NDPS Act 10 years’ rigorous imprisonment with fine of Rs.1 Lakh, in default of payment of fine to further undergo six months’ R.I. U/s. 3/25 Arms Act 3 years’ rigorous imprisonment with fine of Rs.500, in default of payment of fine to further undergo one year’s R.I. All the sentences were ordered to run concurrently. 2. Succinctly stated, the facts of the case are that on 26th of April, 2004 at 1 PM, SHO PS Suhagpura received an information, from Mukhbir pertaining to a black burkha clad lady Ms. Laxmi Raju, resident of Bombay, for carrying illegal brown sugar in a roadways bus No. RJ-17-P-0622 from Pratapgarh to Banswara. Considering information of the Mukhbir to be authentic and reliable, requisite follow-up action was undertaken. Realizing that legal formalities may take some time and in the meanwhile the lady is likely to abandon contraband, the information was entered in Rojnamcha. Subsequent to that, Constable Nathu Ram was deputed to personally divulge all these information’s to controlling officer Deputy Superintendent of Police, Circle Pratapgarh, Addl. Superintendent of Police, Pratapgarh and Superintendent of Police Chittorgarh. The SHO with his team consisting of Chhattar Singh, Mahendra Singh, Sarif Khan proceeded from the Police Station with investigation material at 1:15 PM and reached opposite to Police Station on Pratapgarh-Banswara road at 1:20 PM. Thereafter, Constable Mahendra Singh was sent for summoning Motbirs and he arranged two Motbirs Bhuralal and Govind. The summoned Motbirans were then furnished information under Section 41(2) of the NDPS Act and apprised about the information of Mukhbir followed by notices to them soliciting their consent which both of them conveyed in writing. 3. Thereafter, Constable Mahendra Singh was sent for summoning Motbirs and he arranged two Motbirs Bhuralal and Govind. The summoned Motbirans were then furnished information under Section 41(2) of the NDPS Act and apprised about the information of Mukhbir followed by notices to them soliciting their consent which both of them conveyed in writing. 3. Later on, SHO with his team and Motbirans started barricading at 2 PM and during barricading roadways bus No. RJ 17-P-0622 came from Pratapgarh, which was intercepted by giving signal. After the bus halted, same was checked in presence of its driver, conductor and Motbirans and lady viz. Laxmi Raju was found occupying seat No.10 of the bus. After locating the lady and verifying her identity in terms of information received from Mukhbir, she was asked to alight from the bus. On her alighting from the bus, she was asked to disclose her name then she admitted her name Laxmi Raju resident of Matahari, Masibunder Santkam Road Bombay No.9 PS Mayadhune, Bombay. The bus then left for its destination and lady Laxmi Raju was served a notice under Section 50(1) of the NDPS Act apprising her about the information of Mukhbir. Pursuant to notice under Section 50(1) of the NDPS Act, wherein the SHO concerned given her three options for carrying out search and seizure; viz., in presence of Gazetted Officer, Magistrate or the concerned SHO, she consented for search and seizure by the SHO concerned. This sort of situation facilitated in presence of Motbirans and the requisite search was undertaken by a lady, Ms. Basanti W/o. Prakashchand Regar, due to absence/non-availability of a lady constable. 4. During search, in the right inner pocket of burkha of Ms. Laxmi Raju, a white polythene pouch was recovered containing brownish powder and when the pouch was opened before Motbirans and the Motbirans after smelling found it brown sugar. When Ms. Laxmi Raju was asked to show requisite document, i.e., permit/licence for possessing brown sugar, she answered in negative. The pouch was then weighed and its weight was found 180 grms. After seizure of the contraband, two samples of 10 grms each were prepared for sending to FSL and sealing both the samples remaining contraband was also sealed as per norms. Possession of brown sugar without valid permit or licence constituted offence under Section 8 read with Section 21 of the NDPS Act, and therefore, Ms. After seizure of the contraband, two samples of 10 grms each were prepared for sending to FSL and sealing both the samples remaining contraband was also sealed as per norms. Possession of brown sugar without valid permit or licence constituted offence under Section 8 read with Section 21 of the NDPS Act, and therefore, Ms. Laxmi Raju was served a notice under Section 50(2) of the NDPS Act and she was apprehended. During interrogation, Ms. Laxmi Raju revealed that the seized brown sugar was purchased by her from Kamaal Khan s/o Dilawar Khan and Kushal Khan s/o Dilawar Khan, residents of Gordhanpura. Upon completion of requisite investigation, FIR No. 32/2004 was registered under Section 8/21 of the NDPS Act. 5. The information received from SHO, Police Station Suhagpura, prompted SHO Police Station Pratapgarh to proceed with his team and investigation material at 4:15 PM. Before proceeding, requisite information was also divulged on wireless to Deputy Superintendent of Police, Pratapgarh and Constable Surendra was deputed to summon Motbirans. The Constable, thereupon, arranged two Motbirans Devidayal Singh and Rajendra Singh, who were apprised about their role as Motbirans by giving notices and then their consent was also obtained for acting as Motbirans. Later on, at 4:30 PM, SHO proceeded with entire team and Motbirans and reached Gordhanpura at 4:45 PM. Opposite to hand-pump, a house having roof of Calverts (Kelu) was located with its entrance on the western side. From that house, an incumbent came out and upon inquiry he revealed his name as Kamaal Khan s/o Dilawar Khan. When Kamaal Khan was asked to divulge requisite information about house, he conveyed that two front rooms are in occupation of his parents and out of the two rear rooms behind chowk, northern side room is of his brother Kushal Khan and he is living in the room on southern side. 6. Appellant Kamaal Khan was thereafter apprised about the information of concealing brown sugar by him in his house. The information aforesaid is followed by a notice under Section 50(1) of the NDPS Act. Pursuant to notice under Section 50(1) of the NDPS Act, appellant conveyed his consent for carrying out search by concerned SHO Sumer Singh. Thereupon, the motbirans searched each other and on lawfully searching, appellant Kamaal and the SHO found nothing objectionable in their possession. The information aforesaid is followed by a notice under Section 50(1) of the NDPS Act. Pursuant to notice under Section 50(1) of the NDPS Act, appellant conveyed his consent for carrying out search by concerned SHO Sumer Singh. Thereupon, the motbirans searched each other and on lawfully searching, appellant Kamaal and the SHO found nothing objectionable in their possession. Search of appellant by the SHO in presence of motbirans also proved abortive as nothing objectionable was found with him. Thereafter, search of the part of house in possession of Kamaal Khan commenced and the entire search operation was video-graphed by Constable Babulal. In the front two rooms of the house, allegedly in occupation of the parents of Kamaal, nothing objectionable was found. In the two rear rooms beyond chowk, the southern side room was shown by Kamaal in his occupation. During search of that room one partially broken floor tile revealed and on removing it one brownish bag was found. On opening it, material therein was shown to motbiran and smelt, it was found to be opium-made brown sugar and on weighing it was found to be 110 gms. Out of that two samples of 30 gms each were taken and marked A-1 & A-2 and keeping the rest of brown sugar in very same bag sealed and marked as ‘A’. Thereafter, on searching the bed lying in the room, below cushion one polythene bag was found. The bag was tied by thread. On opening, brownish power was found filled, which was shown to the present motbiran and on smelling all of them said that it was brown sugar. 7. On enquiry about any valid document for keeping said brown sugar in possession, appellant Kamaal showed his inability to produce any such document. Finding the said brown sugar illegal, it was taken in possession of police and weighed then the same weighed with polythene 300 gms. Out of said brown sugar two samples of 30 grams each were taken in two small polythene bags and putting the same in separate small boxes same were kept in small iron boxes and thereafter those boxes were sealed and marked as B-1 & B-2 as sample for FSL and control sample respectively. The remaining brown sugar was kept in the same polythene bag and it was also sealed. The remaining brown sugar was kept in the same polythene bag and it was also sealed. Subsequent to that, in the house of appellant from a dark clandestine place a polythene bag was recovered containing chemical powder used for enhancing quantity of brown sugar. The weight of said polythene bag was 500 grms and its two samples C-1 & C-2 were prepared for FSL Examination and control sample respectively. The remaining powder was kept in the same polythene bag after sealing it. Apart from these articles, two packets of 5 kg Ammonium Chloride were also unearthed from clandestine place of the house and 35 kg sodium which is used for preparation of brown sugar. Sample of the same was drawn marked as ‘D’. During search, 18 cartridges were also found but for that no valid licence was available with the appellant and those were also sealed. In total, from appellant Kamaal Khan’s room 410 grams brown sugar was recovered. 8. The search of appellant’s room was followed by search of the room of his brother Kushal in absence of Kushal and his wife but in presence of appellant. From the room of Kushal, 110 grms brown sugar was recovered of which two samples marked F-1 and F-2 were prepared as sample for FSL and control sample respectively. Besides that, one more polythene bag was also recovered containing 160 grms brown sugar of which two samples were prepared marked as G-1 & G-2 respectively for FSL and control sample. Later on, two protruding tiles of the room of Kushal were opened from which three polythene bags were found containing brown sugar. Each plastic bag was containing 500 grms brown sugar. Samples were drawn from these bags marked as H-1, I-1 & J-1 for FLS and H-2, I-2 & J-2 respectively as control samples. From the room of Kushal two packets were also found containing 10 kg ammonium and four packets of sodium each packet of 5 kgs apart from 1.30 gram paracetamol powder. During search, acetic an-hydrate bottle was also recovered which is used for preparation of brown sugar. A country-made pistol and one pistol made in China was also recovered containing magazine of six loaded cartridges. During search, acetic an-hydrate bottle was also recovered which is used for preparation of brown sugar. A country-made pistol and one pistol made in China was also recovered containing magazine of six loaded cartridges. Accordingly, offence under Section 8/21 of the NDPS Act and Section 3/25 of the Arms Act was registered against the appellant and after giving him notice under Section 50(2) of the NDPS Act, he was arrested and investigation followed. 9. During investigation, extensive search was carried out at the requisite places and the samples were sent for FSL examination. Subsequent to that, requisite sanction was obtained from the District Magistrate, Chittorgarh, however, despite sincere endeavour, accused Kushal could not be apprehended. In this view of the matter, accused Ms. Laxmi Raju was charge-sheeted for offence under Section 8/21 of the NDPS Act whereas appellant was charge-sheeted for offence under Sections 8/21, 29 of the NDPS Act and Section 3/25 of the Arms Act while investigation against Kushal kept pending under Section 173(8) Cr.P.C. 10. The learned trial Court took cognizance against appellant and other accused Ms. Laxmi Raju and thereafter heard arguments on charge and framed charges against appellant for offence under Section 8 read with Section 29, Section 8 read with Section 21 of the NDPS Act and Section 3 read with Section 25 of the Arms Act whereas charge under Section 8 read with Section 21 of the NDPS Act was framed against Ms. Laxmi Raju. 11. On behalf of prosecution, initially 15 witnesses are examined, however, when the evidence of prosecution was going on, appellant absconded from judicial custody by giving dodge to the police guard and therefore he was declared absconder on 8th of August 2006. During trial, Ms. Laxmi Raju also remained absent, and therefore, her bail bonds were forfeited. Despite efforts being made, she could not be apprehended and in that situation she too was declared absconder on 22nd of August 2008. When both the accused persons were absconding, evidence of some of the prosecution witnesses, i.e., PW16 to PW21, were recorded. When the trial was in progress, on 9th of July 2010, appellant surrendered before the Court and he was sent to judicial custody. Later on statements of other witnesses PW23 to PW36 were recorded and documents Ex.P/1 to P/27 were exhibited. Accused Ms. When the trial was in progress, on 9th of July 2010, appellant surrendered before the Court and he was sent to judicial custody. Later on statements of other witnesses PW23 to PW36 were recorded and documents Ex.P/1 to P/27 were exhibited. Accused Ms. Laxmi Raju died during pendency of the trial and therefore proceedings were dropped against her on 10th of January 2011. 12. Upon conclusion of the prosecution evidence, statements of appellant under Section 313 Cr.P.C. were recorded and on his behalf four documents, i.e., Ex.D/1 to D/4 were exhibited. Learned trial Court, thereafter, heard final arguments and by the impugned judgment convicted appellant for the charged offences and handed down sentence aforementioned. 13. The learned trial Court, upon overall analysis of the evidence and materials available on record, has concluded that motbirans were apprised by giving notice Ex.P/7 and Ex.P/32 and after soliciting their consent in compliance of Section 41(2) of the NDPS Act requisite memos Ex.P/8 and P/33 were drawn. That apart, as per learned trial Court, accused Ms. Laxmi Raju (since deceased) was served notice under Section 50(1) of the NDPS Act for divulging information of Mukhbir vide Ex.P/9 before carrying out search and seizure operation. It is also observed by the learned trial Court that the notice issued to accused Ms. Laxmi Raju contained recitals about her right to be searched in presence of a Gazetted Officer or a Magistrate besides the concerned SHO and it is only after her consent to carry out search by the concerned SHO the same was undertaken by one lady Ms. Basanti due to non-availability of lady constable. While adverting to search and seizure proceedings undertaken against appellant, the learned trial Court has recorded a definite finding that he too was given notice for his personal search and the search of house in adherence of mandatory provisions contained in sub-section (1) of Section 50 of the NDPS Act. It is in that background, the learned trial Court has found that compliance of sub-section (1) of Section 50 of the NDPS Act is clear and unequivocal. For recording its affirmative finding about recovery of diacetylmorphine (heroin), learned trial Court has also relied upon the report of FSL regarding sample marked A-1/1, A-1/2, B-1, C-1, F-1, G-1, H-1, I-1 & J-1. 14. For recording its affirmative finding about recovery of diacetylmorphine (heroin), learned trial Court has also relied upon the report of FSL regarding sample marked A-1/1, A-1/2, B-1, C-1, F-1, G-1, H-1, I-1 & J-1. 14. Repelling argument of the accused-appellant for non-compliance of mandatory provisions of Section 42 of the NDPS Act, learned trial Court has observed in the impugned judgment that Kailash Kumar, SHO, Police Station Suhagpura proceeded for the spot to apprehend accused Ms. Laxmi Raju after furnishing information to higher authorities vide Ex.P/17 and therefore compliance of Section 42 is clearly discernible. Learned trial Court has also clarified that simply because Deputy Superintendent of Police (Wireless) has not been produced as prosecution witness cannot by itself be construed as non-compliance of Section 42 of the NDPS Act so as to draw adverse inference in the matter, more particularly, in the wake of availability of the evidence of Sumer Singh, SHO Police Station Pratapgarh and other team members besides umpteen material available on record. 15. Taking into consideration the legal precedents relied upon by the defence, learned trial Court also concluded that adequate compliance of Section 42 cannot be decided in isolation to facts of an individual case. Placing heavy reliance on the recovery of brown sugar from the premises allegedly owned by accused appellant and arms and ammunition, learned trial Court has found that in such a situation presumption about his innocence is per se not acceptable and consequently he cannot be given benefit of doubt. A very crucial question which emerged for consideration before the learned trial Court having direct ramification on the case was non-compliance of Section 55 of the NDPS Act which prescribes the sanctity of case property. As per Section 55 of the NDPS Act, it is duty of the police to take charge of the articles seized and delivered. The learned trial Court, upon examining the report of FSL, brushed aside objection of the defence that samples are tampered with. Misplacement of articles in Malkhana and non-production of Muddamal before the Court was also not considered fatal by the learned trial Court for indicting the appellant for the charged offences in the backdrop of other evidence available on record. 16. For challenging the impugned judgment, learned counsel Mr. Misplacement of articles in Malkhana and non-production of Muddamal before the Court was also not considered fatal by the learned trial Court for indicting the appellant for the charged offences in the backdrop of other evidence available on record. 16. For challenging the impugned judgment, learned counsel Mr. M.L. Bishnoi has orchestrated following arguments: Prosecution had failed to establish due compliance of Section 42(1)&(2) of the NDPS Act since information furnished by Ms. Laxmi Raju was neither reduced by the officer in writing nor the same was forwarded within 72 hours to his immediate officer superior. Statements of SHO PW23 Sawai Singh IO are tentative in this behalf and nothing on record to substantiate. Invocation of Section 27 of the Indian Evidence Act 1872, by the learned trial Court, to tone down the mandate of two sub-sections of Section 42 of the NDPS Act, is per se perverse finding and patently infirm in the light of facts and circumstances of the case. Notice under Section 50 of the NDPS Act served on the appellant is laconic inasmuch as in the notice seizure officer has furnished option to search him personally in presence of a nearest Gazetted Officer and nearest Magistrate besides third option by the seizure officer himself. Contention of the appellant is that furnishing third option of carrying out search in presence of seizure officer, i.e., concerned SHO, has frustrated the provisions of sub-section(1) of Section 50 of the NDPS Act and eventually vitiated the search. Independent Motbir of recovery during search of premises allegedly owned/occupied by the accused appellant PW29 Deen Dayal Singh turned hostile and disowned his signature on Notice Ex.P/34 and further shown his ignorance about recovery of narcotic drug/ psychotropic substance and arms and ammunition from the premises. He has completely repudiated his police statements Ex.P/35. Independent witnesses produced to show premises by or under occupation of accused-appellant from where contraband recovered is owned, viz., PW10 Pradeep Kumar and PW11 Poonam Chand have resiled from their statements recorded during investigation by turning hostile, thereby not supporting the prosecution case. Seized contraband/Muddamal has not been produced in the Court in the self-same condition and there is no link evidence to record conviction of the appellant. There is no evidence of sterling worth to show that premises from which contraband was seized is owned by the appellant or had been in his exclusive possession. Seized contraband/Muddamal has not been produced in the Court in the self-same condition and there is no link evidence to record conviction of the appellant. There is no evidence of sterling worth to show that premises from which contraband was seized is owned by the appellant or had been in his exclusive possession. FSL examination report for the sample sent lost and prosecution produced second report as secondary evidence but the same was not allowed by the Court, as such, not acceptable. Report of Central Forensic Lab, Hyderabad dated 4th of March 2013 not exhibited through produced before the learned trial Court casting shadow of doubt on the prosecution case. Presumption drawn by the learned trial Court under Section 114 of the Evidence Act is infirm in absence of cogent evidence about exclusive possession of the premises from which contraband is recovered. Ex.P/20 are depicted as seals of SHO, Police Station, Suhagpura but in fact the seals affixed on it are of Police Station Deogarh, District Chittorgarh. 17. In support of his various contentions, learned counsel for the appellant has placed reliance on following judgments: i. Ashok @ Dangra Jaiswal Vs. State of Madhya Pradesh [2011 Cr.L.R. (SC) 363] ii. Vijay Jain Vs. State of Madhya Pradesh [ (2013) 14 SCC 527 ] iii. Jitendra & Anr. Vs. State of M.P. [(2004) SCC (Cri) 2028] iv. State of Punjab Vs. Balbir Singh [1994 Cr.L.R. (SC) 241] v. Ismailkhan Aiyubkhan Pathan Vs. State of Gujarat [2002 Drugs Cases 56 (SC)] vi. State of Rajasthan Vs. Parmanand & Anr. ( AIR 2014 SC 1384 ) vii. Mohd. Alam Khan Vs. Narcotics Control Bureau & Anr. (1996 Cri.L.J.2001). viii. Bhajan Prakash Vs State of Rajasthan [1997 Cr.L.R. (Raj.) 746]. ix. Jai Ram Vs. State [2005(2) Cr.L.R. (Raj.) 1507] x. Birma Ram Vs. State of Rajasthan [2005(2) Cr.L.R. (Raj.) 1593] xi. Kishanlal Vs. Union of India [2013(3) Cr.L.R. (Raj.) 1628] xii. State of Rajasthan Vs. Bhup Singh @ Bhupat Singh [2013(4) Cr.L.R. (Raj.) 1897] xiii. Sona Ram Vs. State of Rajasthan (S.B. Cr. Appeal No.29/2016, decided on 10th October, 2017]. 18. Per contra, learned Public Prosecutor, while stoutly defending the impugned judgment, has made following submissions: Recovery of brown sugar from the premises in possession of the accused appellant is duly proved by the prosecution. Bhup Singh @ Bhupat Singh [2013(4) Cr.L.R. (Raj.) 1897] xiii. Sona Ram Vs. State of Rajasthan (S.B. Cr. Appeal No.29/2016, decided on 10th October, 2017]. 18. Per contra, learned Public Prosecutor, while stoutly defending the impugned judgment, has made following submissions: Recovery of brown sugar from the premises in possession of the accused appellant is duly proved by the prosecution. Statements of PW35 Kailash Kumar Vishnoi, SHO, Suhagpura, District Chittorgarh, are clear and unequivocal showing due/sufficient compliance of Section 42(2), NDPS Act. Statement of PW31 Sumer Singh, SHO Pratapgarh, District Chittorgarh with other evidence has sufficiently proved recovery of brown sugar from the premises in possession of appellant to bring home guilt for the offences. Learned trial Court in the backdrop of facts and circumstances of the case has rightly drawn presumption under Section 114 of the Evidence Act. Though notice under Section 50 was containing third option of the SHO concerned but that itself cannot vitiate the recovery more particularly in the wake of the fact that for search of the premises requirement of giving notice is not necessary. Learned Public Prosecutor, in support of his arguments, has placed reliance on following decision: State of Punjab Vs. Balbir Singh & Ors. ( AIR 2005 SC 27 ) 19. I have bestowed my consideration to the arguments advanced by learned counsel for the appellant, learned Public Prosecutor and perused the impugned judgment after scanning the materials available on record. 20. Upon a threadbare examination of the impugned judgment, recording conviction of the appellant for the charged offences, following questions have emerged for judicial scrutiny and adjudication, in the backdrop of arguments advanced by the learned counsel for the appellant: i. Compliance of Section 42 of the NDPS Act, ii. Validity of Notice under Section 50(1) of the NDPS Act, iii. Standard of Proof regarding ownership or under occupation of the accused appellant the place wherefrom contraband (brown sugar) and arms and ammunition are recovered, iv. Effect of non-production of contraband/Muddamal before the trial Court in the self-same condition, v. Non-availability of FSL Examination report on record being lost in transit and not allowing second report as secondary evidence by the Court, vi. Whether report of Central Forensic Laboratory, Hyderabad, available on record but not exhibited, has any significance, and vii. Legality and propriety of the presumption drawn by learned trial Court under Section 114 of the Indian Evidence 1872. 21. Whether report of Central Forensic Laboratory, Hyderabad, available on record but not exhibited, has any significance, and vii. Legality and propriety of the presumption drawn by learned trial Court under Section 114 of the Indian Evidence 1872. 21. The first question pertaining to compliance of Section 42 of the NDPS Act for taking down information in writing by an officer, which he has received under sub-sec.(1) of Section 42 of the NDPS Act, as first part of its compliance, it would be appropriate to scrutinize the evidence of PW31 SHO Pratapgarh, District Chittorgarh. A bare reading of the cross-examination of the witness makes it abundantly clear that the SHO concerned has not prepared memo of such information. Therefore, as per the version of the witness himself, the information about appellant being in possession of brown sugar (contraband) was not reduced in writing in compliance of sub-sec.(1) of Section 42 of the NDPS Act. As regards compliance of sub-sec.(2) of Section 42 of the NDPS Act, there is specific denial by the witness about divulging such information to his immediate superior officer. While it is true, that the witness on his own has deposed that the said information was conveyed on wireless but then at the behest of prosecution no material was placed on record to substantiate the same. True it is that recovery of brown sugar (contraband) made from the appellant was second recovery as the first recovery was made from other accused Ms. Laxmi Raju (since deceased) but still not taking down information in writing has casted a shadow on the conduct of the prosecution. In this behalf information of the Mukhbir was also conspicuously silent about appellant and Kushal and their place of residence as is evident from statements of PW35 Kailash Kumar Vishnoi. My aforesaid view finds support of a decision of a learned Single Judge of this Court in Kishanlal (supra). In this behalf, information of the Mukhbir was also conspicuously silent about appellant and Kushal and their place of residence as is evident from statements of PW35 Kailash Kumar Vishnoi. 22. The learned trial Court in order to justify second recovery has taken shelter of Section 27 of the Indian Evidence Act, 1872. In this behalf, information of the Mukhbir was also conspicuously silent about appellant and Kushal and their place of residence as is evident from statements of PW35 Kailash Kumar Vishnoi. 22. The learned trial Court in order to justify second recovery has taken shelter of Section 27 of the Indian Evidence Act, 1872. There remains no quarrel that Section 27 is an exception to its three preceding sections, i.e. Section 24 to 26 of the Evidence Act, inasmuch as when the information given by the accused relates distinctly to the fact leading to discovery of incriminating material is relevant may be taken to be proved. Thus, the Legislature in its wisdom has taken utmost care so that the protection afforded by the wholesome provisions of Section 25 & 26 of the Act of 1872 may not be whittled down by the police by their ingenuity in manipulating the record. In that background, if the memo of information furnished by co-accused Laxmi Raju Ex.P/27 is examined then it would ipso facto reveal that she has simply disclosed a fact of purchasing brown sugar from accused-appellant Kamaal Khan and Kushal Khan and has further disclosed to identify the house and place of these incumbents. Therefore, the discovery made by co-accused Ms. Laxmi Raju (since deceased) as such cannot be construed as a disclosure leading to discovery of any incriminating material. At best, such information can be construed as an information about commission of offence or statement by a co-accused against the other accused showing his involvement in commission of offence. It is also noteworthy that information received by SHO PS Suhagpura from Mukhbir nowhere disclosed name of the appellant. In such situations, I am afraid, dispensing with the requirements envisaged under sub-sec.(1) & (2) of Section 42 by the prosecution cannot be taken as condonable. The law if envisage a particular thing to be done in a particular manner then the same is required to be done in adherence of the mandate of law and not otherwise. My view finds support of a decision of Supreme Court in Balbir Singh (supra), wherein the Court has held: “Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. My view finds support of a decision of Supreme Court in Balbir Singh (supra), wherein the Court has held: “Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.” 23. The second issue is pertaining to validity of notice under Section 50 of the NDPS Act. When any personal search under the provisions of Section 41, 42 & 43 of the NDPS Act is required to be conducted on prior information undeniably Section 50 of the NDPS Act is applicable. The purpose of informing a suspect that search can be made in presence of a Gazetted Officer is to ensure safeguard against planting any incriminating article. A bare reading of sub-section(1) of Section 50 of the NDPS Act makes it abundantly clear that it is an imperative requirement on the part of officer intending search, to inform the person to be searched of his right to be searched in presence of Gazetted Officer or Magistrate. In the instant case, it is explicitly clear that PW31 Sumer Singh, SHO Police Station, while giving notice Ex.P/2 had intended to search the person of the accused and the residential premises and eventually the appellant was searched personally. Therefore, obviously, requirement of giving notice under Section 50 was necessary. Supreme Court, in case of Balbir Singh (supra), examined the power of empowered officer or authorized officer, while considering the provisions of Section 41(2) or 42 of the NDPS Act, with respect to compliance of Section 50 of the NDPS Act. Considering the rigor of Section 50 of the NDPS Act, the Court observed that before the search of a person is made, such person should be informed that if he so desires he would be produced before a Gazetted Officer or a Magistrate as provided thereunder. Considering the rigor of Section 50 of the NDPS Act, the Court observed that before the search of a person is made, such person should be informed that if he so desires he would be produced before a Gazetted Officer or a Magistrate as provided thereunder. The Court finally held: “Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to noncompliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial.” 24. While it is true that in this matter appellant was given notice under Section 50 of the NDPS Act but the SHO concerned while giving option of search being carried out in presence of a Gazetted Officer or a nearest Magistrate has also given the option of search to be carried out by himself and eventually carried out the entire search himself. This sort of action on the part of seizure officer is in clear violation of the mandate of Section 50 of the NDPS Act. Supreme Court, in Parmanand & Anr. (supra), while considering validity of notice under Section 50 and probable consequences of its non-compliance, more particularly in case seizure officer has furnished third option to be searched in his own presence besides the option of Gazetted Officer or Magistrate, opined that the third option would frustrate the provisions of Section 50(1) of the NDPS Act. The Court held: “We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest Gazetted Officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest Gazetted Officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest Gazetted Officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court's view is perverse. The appeal is, therefore, dismissed.” 25. As observed hereinabove, notice Ex.P/2 was given to the appellant for search of his person as well as premises but nothing objectionable was found from the person of the appellant and the contraband (brown sugar) was recovered from the premises but then Motbir of recovery Devi Dayal Singh (PW29) has turned hostile and has not supported the prosecution case. As a matter of fact, during cross examination by Public Prosecutor, he has categorically denied recovery of brown sugar from the premises of appellant and Kushal Khan. Further, Motbir PW29 was also not from village Gordhanpura and in his statements has denied his participation in any recovery made by PW31 Sumer Singh. Therefore, the independent Motbir PW29 has also not supported the prosecution case about recovery of contraband from the premises. Further, Motbir PW29 was also not from village Gordhanpura and in his statements has denied his participation in any recovery made by PW31 Sumer Singh. Therefore, the independent Motbir PW29 has also not supported the prosecution case about recovery of contraband from the premises. This being the position and the fact that seizure officer has furnished third option to the appellant for search of his person, has obviously put the recovery under serious cloud and virtually vitiated the recovery as such, having direct ramification on the conviction recorded by learned trial Court. The judgment relied upon by the prosecution in case of State of Punjab Vs. Balbir Singh ( AIR 2005 SC 27 ) is clearly distinguishable inasmuch as in that case no personal search was involved. 26. Now adverting to third and seventh question, as both are inter-laced, suffice it to observe that the premises, from where contraband (brown sugar) and arms and ammunition were recovered, was it owned by appellant or within his exclusive possession, burden was on prosecution. If the evidence of Investigating Officer PW31 Sumer Singh is closely scrutinized then it would ipso facto reveal that he was not accompanied by any Motbir of village Gordhanpura. The witness during his cross-examination has also admitted that neither he called Sarpanch or Secretary of concerned Gram Panchayat during search operation nor called the neighbours. PW31 has also very candidly admitted in his cross-examination that he has not been able to procure any document indicating that the appellant owned the house/premises in question. It is also clearly discernible from the statement of witness that he has not verified ration-card or any other document showing that appellant and other inhabitants of the premises were living in joint family or having their separate residences. A very vital fact, that at the place where appellant was residing, his brother-in-law (looser) Rahim was also residing with him, is clear from the statement of PW31. Therefore, in totality, the evidence of PW31 to show ownership of appellant on the premises or his exclusive possession over it, is far from satisfactory. 27. At this stage, evidence of PW10 Pradeep Kumar Gandhi, Secretary, Gram Panchayat also requires consideration. Witness PW10 in his statements has clarified that in the record of Panchayat there is no entry of any house in the name of appellant Kamaal s/o Dilawar Khan or Dilawar Khan s/o Aalam Khan. 27. At this stage, evidence of PW10 Pradeep Kumar Gandhi, Secretary, Gram Panchayat also requires consideration. Witness PW10 in his statements has clarified that in the record of Panchayat there is no entry of any house in the name of appellant Kamaal s/o Dilawar Khan or Dilawar Khan s/o Aalam Khan. During cross-examination, the witness has further stated that in panchayat area no house can be constructed without permission and if any construction is raised requisite action is taken by the Panchayat. He further states that had there been any complaint, the Panchayat would have taken action against illegal construction. Likewise, the statements of Sarpanch, Avleshwar Panchayat are also not supporting the prosecution case as he has turned hostile. Deposing in his cross-examination at the behest of defence counsel, the witness has also stated that police never asked him to verify location of the house of appellant or Dilawar and construction of house within panchayat area is to be carried out after due permission. Therefore, the recovery of brown sugar or arms and ammunition from the premises owned by appellant or within his exclusive possession is not proved by the prosecution. Supreme Court, in Mohd. Alam Khan (supra) opined that during search and seizure ownership and possession of premises by the accused from which contraband articles were recovered, is to be established by the prosecution and failure to do so would entitled the accused to acquittal. The Court held: “The High Court was not right in holding that the learned Trial Judge was therefore right in holding that in view of Section 66 of the N.D.P.S. Act, the said document can be admitted in evidence and it goes to show that the said flat was owned by the appellant. Again the High Court observed that 'even assuming' that the said agreement is excluded from consideration, there remains the specific information received, Exhbt. 33 and his own statement recorded by the Authority under Section 313, Exhbt. 83 and 84 and all of the them go to show that the appellant was the owner of the said flat. As pointed out earlier that nobody has identified the flat in question as belonging to the appellant and in the absence of corroborating evidence, one cannot come to a confirmed conclusion regarding ownership and possession on the basis of the retracted statements of the appellant alone. As pointed out earlier that nobody has identified the flat in question as belonging to the appellant and in the absence of corroborating evidence, one cannot come to a confirmed conclusion regarding ownership and possession on the basis of the retracted statements of the appellant alone. For all these reasons, we hold that the persecution failed to establish the ownership of the flat in question as belonging to the appellant and consequently the conviction and sentence challenged in this appeal cannot be sustained. Accordingly, the appeal is allowed and the conviction and sentence passed against the appellant are set aside. The appellant will be set at liberty at once unless required in any other case. Fine, if paid will be refunded.” The same view is also reiterated by a coordinate Bench in case of Sona Ram (supra). 28. The second part of this question, i.e. presumption under Section 114 of the Evidence Act, which the learned trial Court has drawn, cannot be examined in isolation to the evidence and materials available on record. As observed hereinabove, the evidence tendered by the prosecution has many loopholes and is not sufficient to establish exclusive ownership or possession of the appellant over the premises from which contraband (brown sugar) and arms and ammunition are recovered. The evidence, at best, be construed as showing joint possession of the appellant on the premises in question. For raising presumption allegedly under Section 114 of the Evidence Act, possession of contraband/arms & ammunition should be exclusive as well as recent. Where contraband/arms & ammunition are recovered from a house/premises occupied by several persons, there can be no presumption that the place was in exclusive possession of the accused. As such, in the backdrop of facts and circumstances of the instant case, invocation of presumption under Section 114 of the Evidence Act by the learned trial Court is perverse. Mere presence of accused-appellant at a particular place cannot attract Section 114 of the Evidence Act for drawing any presumption that the person present to be in possession of narcotic drug or psychotropic substance. My view finds support of a decision of Supreme Court in Ismail Khan Ayub Khan Pathan (supra) wherein the Court held: “There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of the narcotic or psychotropic substance. My view finds support of a decision of Supreme Court in Ismail Khan Ayub Khan Pathan (supra) wherein the Court held: “There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of the narcotic or psychotropic substance. No presumption under law can be drawn even under Section 114 of the Evidence Act merely because these persons were present when PW7 went there." Thus, both these questions are to be answered against the prosecution rendering finding of the learned trial Court in this behalf vulnerable. 29. The fourth question raised on behalf of the appellant to assail his indictment for the offences and consequent conviction requires adjudication in the light of facts and circumstances of the instant case. There remains no quarrel that the original information received by SHO Police Station Suhagpura, PW35 Kailash Kumar, was confined to co-accused Laxmi Raju (since deceased) that she was in possession of contraband (brown sugar) and it was only after apprehending her, she divulged the information of purchasing contraband from appellant. That apart, the seizure officer has not found any objectionable article upon personal search of the appellant and the objectionable contraband (brown sugar) and other chemicals besides arms and ammunition were recovered from the house/premises allegedly owned or occupied by him. Thus, in such a situation, the entire prosecution of the appellant rested on the recovery of contraband (brown sugar) from the house/premises allegedly owned by him or under his occupation and that cannot be held proved unless the seized substance is produced before the Court. It is also noteworthy that on overall appreciation of evidence, Court has found recovery itself doubtful and has also repudiated presumption under Section 114 of the Evidence Act. Strangely, the learned trial Court, while dealing with this significant question, has dealt the same in an absolutely casual manner. 30. During trial, a very vital fact has come to the fore that Malkhana of the case is misplaced but subsequently it was party traced out, castes a shadow of doubt on the contraband/Muddamal allegedly seized from the appellant. The law envisages that contraband/Muddamal is to be preserved and produced in self-same condition. 30. During trial, a very vital fact has come to the fore that Malkhana of the case is misplaced but subsequently it was party traced out, castes a shadow of doubt on the contraband/Muddamal allegedly seized from the appellant. The law envisages that contraband/Muddamal is to be preserved and produced in self-same condition. In the instant case, even the recovered arms and ammunition are not produced with due seal and signatures and both the independent Motbirs of recovery PW1 Rajendra Singh and PW29 Devi Dayal have turned hostile. The Supreme Court in Vijay Jain (supra), while examining the case of an accused possessing brown sugar, relied on the decision in Jitendra & Anr. (supra) and held: “On the other hand, on a reading of this Court's judgment in Jitendra case, (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 for 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 no 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 the case of Ashok, (2004) 10 SCC 562 , 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.” 31. In cases of recovery of narcotic drugs and psychotropic substances, prosecution cannot shirk from its obligation to prove by reliable link evidence that the samples of the seized contraband collected were kept in self-same condition right from the inception of seizure till same reached FSL. Further production of seized articles, Muddamal before Court is also essential. In cases of recovery of narcotic drugs and psychotropic substances, prosecution cannot shirk from its obligation to prove by reliable link evidence that the samples of the seized contraband collected were kept in self-same condition right from the inception of seizure till same reached FSL. Further production of seized articles, Muddamal before Court is also essential. If the evidence of PW31 Sumer Singh is critically analyzed in this behalf, then it would ipso facto reveal that the articles which were produced before the Court were not marked by the concerned SHO Kailash Bishnoi. The witness during cross-examination further admits that from which place Articles 5, 6 & 7 recovered is not mentioned and therefore it is not possible to say that they are connected with the appellant. PW31 has candidly admitted that the entire Muddamal was not produced before the Court and was unable to explain reason for non-production of entire seized articles/Muddamal. The witness has also given a very evasive answer to the question as to whether Malkhana of this case was misplaced or not. As regards Articles 17, 18 & 19, as per version of the witness, neither time has been mentioned nor the re-seal is visible. The witness has admitted that the pistols produced before the Court were not re-sealed so also the cartridges and other ammunition. 32. Similarly, evidence of PW27 Dudha Ram is also indicating the fact that weight of seized brown sugar and complete particulars of other articles were not mentioned and Notice Ex.P/29 under Section 52 of the NDPS Act also does not contain recital that the same is received by the accused-appellant. Therefore, the evidence tendered by the prosecution is not sufficient to prove that the seized articles were kept in self-same condition. Furthermore, non-production of contraband/ Muddamal before the Court in self-same condition ought to have been considered by the learned trial Court being the best evidence, as there is no explanation much less plausible explanation forthcoming from the prosecution side for its failure to do so. Mere oral evidence cannot be relied upon for drawing an inference that prosecution has discharged its burden to prove seizure of contraband (brown sugar) and arms and ammunition from the possession of appellant. Mere oral evidence cannot be relied upon for drawing an inference that prosecution has discharged its burden to prove seizure of contraband (brown sugar) and arms and ammunition from the possession of appellant. In such a situation, the irresistible conclusion of the Court is that learned trial Court has seriously erred in recording its finding on this question in favour of prosecution and against the accused-appellant. The question, in the backdrop of peculiar facts and circumstances of the instant case, deserves answer favouring the cause of the appellant. 33. Lastly, questions No.5 & 6, which are inter-related, deserve scrutiny in the light of evidence available on record. There is no dichotomy that original FSL report was not produced before learned trial Court as the same was probably misplaced. While it is true that witness PW31 Sumer Singh during his deposition before the Court was skeptical on the question put by defence but the fact remains that FSL report was not produced before the Court and subsequently its zerox copy was sought to be placed on record by the prosecution with permission to produce secondary evidence but the same was declined by the learned trial Court. Despite non-availability of FSL report on record, learned trial Court has completely eschewed this vital question for castigating the appellant for offence under Section 8 read with Section 21 and Section 8 read with Section 29 of the NDPS Act. Without there being FSL report, how and in what manner court can presume, that seized material was brown sugar, is not at all discernible from the impugned judgment. Misplacement of FSL report by the prosecution and its not forming part of the record of trial Court is a matter of grave concern. This sort of callousness and apathy sufficiently demonstrates that how and in what manner prosecution is dealing with such sensitive matters of drug trafficking which is a menace to the society. Be that as it may, such serious lapses on the part of prosecution ultimately benefits the accused for seeking benefit of doubt. With the advent of time, on account of sloppy investigations, drug trafficking has been accentuating frenzy for making colossal money amidst the greed of wrongdoer/drug paddlers. Therefore, it is expected of the prosecution to take utmost caution while investigating such crimes which have now become a global phenomenon. 34. With the advent of time, on account of sloppy investigations, drug trafficking has been accentuating frenzy for making colossal money amidst the greed of wrongdoer/drug paddlers. Therefore, it is expected of the prosecution to take utmost caution while investigating such crimes which have now become a global phenomenon. 34. As regards report of Forensic Science Laboratory, Hyderabad, suffice it to observe that it has not been exhibited though produced before the Court by the prosecution. I am really amazed, why the same was not exhibited by the prosecution. In all probability, the prosecution has not exhibited the said report because it did not fully supported its case. While refraining to place reliance on the said report, it may be observed that Point No.4 of the report states that Diacetylmorphine (Heroin) has not been detected in Exhibit A-2, Ex.B-2 and Ex.C-2. However, when the question of recovering contraband itself is under serious cloud, as observed supra, it would not be appropriate to take cognizance of such a report as the same has not been exhibited. Be that as it may, on overall analysis, it is clearly reflected that the prosecution has not made any endeavour to produce requisite material concerning the case irrespective of the fact that it was incuplatory or exculpatory in nature for whatever reason. Thus, I do not feel inclined to make any comment regarding ramification of not exhibiting the FSL report of Hyderabad before learned trial Court on the prosecution case. In totality of circumstances, outcome on other questions in favour of the appellant, non-production of State Laboratory report and not exhibiting FSL report of Hyderabad has undeniably put indictment of the appellant for offences in jeopardy. 35. Answer of all the questions favouring the accused-appellant has paved the way to examine legality and propriety of the impugned judgment indicting him for the charged offences and the punishments handed down pursuant thereto. In overall analysis, I am constrained to observe that learned trial Court has completely overlooked/ignored to clear the reasonable doubts while holding appellant guilty for the offences. Under the law and more particularly in criminal jurisprudence in a doubtful matter negative is to be understood rather than affirmative. While passing the impugned judgment, the learned trial Court, in fact, swayed by serious delinquencies attributed to the appellant but for applying golden rule of proof beyond reasonable doubts. Under the law and more particularly in criminal jurisprudence in a doubtful matter negative is to be understood rather than affirmative. While passing the impugned judgment, the learned trial Court, in fact, swayed by serious delinquencies attributed to the appellant but for applying golden rule of proof beyond reasonable doubts. Indisputably, delay defeats the justice but at times hurried justice may result in travesty of justice which obviously cannot be countenanced in a criminal case. Therefore, applying legal maxim In re dubia, magis inficiatio quam affirmatio intelligenda, in the light of material available on record and sans moral certainty about guilt of the appellant for the charged offences, I feel persuaded to extend him benefit of doubt by annulling the impugned judgment. The upshot of the above discussion is that the instant appeal is allowed and impugned judgment dated 14th of May 2015, passed by learned trial Court in Sessions Case No. 21/2004 is hereby reversed and set aside. The accused-appellant Kamaal Khan is acquitted of the charges and therefore he be released forthwith if not wanted in any other case.