JUDGMENT : Mir Alfaz Ali, J. 1. This appeal is directed against the judgment and order dated 22/09/2015 passed in Special (NDPS) Case No. 3/2009 by the Court of Special Judge, Sonitput, Tezpur. By the said judgment, the appellant was convicted u/s. 20 (b) (ii) (C) of the NDPS Act and sentenced to rigorous imprisonment for 10 years and fine of Rs. 1,00,000/- (Rupees one lakh) with default stipulation. 2. As per prosecution case, on 16/7/2009, on the basis of secret information, the officers of Customs Preventive Force, Tezpur, were waiting at Mission Chariali for a suspected auto van, which was allegedly carrying contraband articles. At about 9.30 at night, they intercepted a red colour Bazaz Autovan bearing registration No. AS-13A-4343, as mentioned in the secret information report, which was carrying some plastic and jute bags containing suspected contraband articles. The officers checked the plastic bags in presence of the witnesses and driver of the van and found some dry leaves in the bags suspected to be ganja. They immediately brought the vehicle loaded with suspected ganja to the custom office at Tezpur. On thorough checking, it was found that there were 26 numbers of plastic bags and one jute bag containing 310 kgs of suspected ganja, which were seized by the customs officers following the rules and procedures prescribed by the NDPS Act. Three samples in duplicate, each samples containing 25 gms were drawn from the seized ganja and the same were sent to Forensic Science Laboratory for chemical examination. The Customs Department also conducted search in the house of the accused/appellant but nothing could be recovered. The chemical examination report of the sample collected from the seized ganja gave positive test for cannabis. After receiving the Forensic Science Laboratory report, a complaint (offence report) was filed by Sri Ajoy Sen Deka, the Inspector of Customs Preventive Force, Tezpur, on the basis of which, learned Special Judge took cognizance and eventually the accused/appellant stood trial for offence u/s. 20 (b) (ii) (C) NDPS Act. 3. In course of trial, prosecution examined nine witnesses to establish the charge against the appellant. On completion of the prosecution evidence, the accused was examined u/s. 313 CrPC and all the incriminating evidence and materials were put to him. In his examination u/s. 313 CrPC, the accused/appellant took the plea of innocence. 3. In course of trial, prosecution examined nine witnesses to establish the charge against the appellant. On completion of the prosecution evidence, the accused was examined u/s. 313 CrPC and all the incriminating evidence and materials were put to him. In his examination u/s. 313 CrPC, the accused/appellant took the plea of innocence. The appellant stated in his examination u/s. 313 CrPC, that while he was going with his auto van, one Dipu Bania (DW 1) asked him that he got a trip for carrying 'husk of black pulse". Accordingly, he along with Dipu went to the place, where 27 numbers of bags were downloaded from another tempo and loaded in his tempo. Coming to know that those bags contained ganga, he protested. However, 6/8 persons, who were present there, assaulted him and compelled him to carry the bags in his vehicle and accordingly, when he was proceeding, he was apprehended by the Customs officers near Mission Hospital in front of Kacharigaon police outpost. He also stated that he intended to take the vehicle to police outpost. However, before reaching the police outpost, the Customs Department caught his vehicle. The accused/appellant also examined one defence witnesses in support of his defence. On appreciation of evidence adduced by the prosecution as well as the defence, learned trial court having found the accused/appellant guilty of committing the offence u/s. 20 (b) (ii) (C) of the NDPS Act convicted him and awarded sentence as indicated above. 4. Aggrieved by the impugned judgment of conviction and sentence, the accused preferred the instant appeal. 5. I have heard Mr. Y.S. Mannan assisted by Advocates, S. Biswas and S. Gohain, for the accused as well as Mr. S.C. Keyal, learned Addl. Solicitor General of India for the CBI. 6. Learned counsel for the accused/appellant assailed the judgment, amongst others, on the following main grounds :- (i) Non-compliance of Section 42 NDPS Act. (ii) Absence of independent witnesses at the time of search and seizure. (iii) The sample collected for chemical examination was neither representative nor in accordance with prescribed procedure. 7. Before adverting to the submission of the learned counsel for the appellant, it would be appropriate to scrutinize the evidence brought on record. 8. PW 6 Sri Ajay Sen Deka, Inspector, Central Excise stated, that on receipt of a secret information, Sri Pranesh Dhar passed the information to Superintendent, Taufiq Hussain. 7. Before adverting to the submission of the learned counsel for the appellant, it would be appropriate to scrutinize the evidence brought on record. 8. PW 6 Sri Ajay Sen Deka, Inspector, Central Excise stated, that on receipt of a secret information, Sri Pranesh Dhar passed the information to Superintendent, Taufiq Hussain. According to him, the information received by Sri Pranesh Dhar was to the effect, that a person was carrying ganja through Mission Chariali and the secret information was recorded in the relevant register. On receipt of the secret information, a team of officers under the command of Superintendent Taufiq Hussain, comprising of PW 6 himself, Inspector Pranesh Dhar (PW 7), constable Dilip Rajkhowa (PW 5), constable Riaz Uddin Ahmed was constituted and they were waiting on the roadside and as per the secret information, and caught a red colour auto van. During search, they found that the van was carrying some gunny bags. During cross-examination, at one point of time he stated, that he himself arrested the accused and seized ganja. Again in the same breath he stated that Inspector Pranesh Dhar arrested the accused and also seized the contraband in his presence. According to him, sample was collected from three bags. 9. PW 7, Pranesh Dhar stated, that the Inspector Ajoy Sen Deka received the information to the effect that a person was carrying suspected ganja in 30/35 bags in an auto van, which was proceeding from Division ghat towards Puruwa Chariali. Accordingly, they laid an ambush near Mission Chariali and caught the Auto van. During search of the van by Ajoy Sen Deka (PW 6) and other officers, it was found that 26 plastics bags and one jute bag containing suspected ganja were carried in the auto van by the accused appellant Sahidur Rahman. According to him, the samples were drawn by PW 6, Ajoy Sen Deka and the seizure memo was proved as Ext. 4. He further stated that he seized the ganja and also arrested the accused persons. According to him, three samples in triplicate were drawn from all the seized bags numbering 27 and each sample contained 25 gms. During cross-examination, PW 7 stated that the information was received by Ajoy Sen Deka, PW 6, and was conveyed to him and all other officers including PW 9 Taufiq Hussan. According to him, three samples in triplicate were drawn from all the seized bags numbering 27 and each sample contained 25 gms. During cross-examination, PW 7 stated that the information was received by Ajoy Sen Deka, PW 6, and was conveyed to him and all other officers including PW 9 Taufiq Hussan. He further stated that he had no knowledge whether such information was reduced to writing or not. 10. PW 2 & PW 3 were shown as independent witnesses to the search and seizure. According to PW 2, while he was waiting for bus, noticing a large number of people gathering nearby, he came forward and found 26 numbers of plastic bags. The Customs Officers told him that those bags containing ganga were recovered by them. According to him, the Customs officials seized the ganja and collected sample there-from. In cross-examination, this witness stated, that out of curiosity, when he reached near the gathering, he found 5/6 Customs officials there, who were known to him and on the request of the Customs officials, he went to the Custom office at LB Road, and in presence of the Inspector of Customs, he put his signature on several papers and on sealed envelopes. He categorically stated that the ganja was not weighed before him and he was also not told by the Customs officials as to exactly from where those contraband were seized. He further stated, that he being regular supplier of the customs office, Tezpur he used to visit the customs office frequently. PW 3 stated that noticing people gathered near Mission Hospital, he went there and saw some gunny bags in a tempo vehicle. He was called to the Customs Preventive Force office at Tezpur and he was also told by those officials that the bags contained suspected ganja. He further stated that the suspected ganja found in the 27 bags were weighed and there were 313 kgs of ganga. According to him, Customs officials took his signature on 12 Nos. of papers. However, he pleaded ignorance as to what were written on those papers. He also stated that when his signatures were taken on various papers, he saw the accused in one of the room of the custom office. During cross-examination, this witness also stated that he had acquaintance with the customs officials and therefore, they called him to their office. However, he pleaded ignorance as to what were written on those papers. He also stated that when his signatures were taken on various papers, he saw the accused in one of the room of the custom office. During cross-examination, this witness also stated that he had acquaintance with the customs officials and therefore, they called him to their office. He stated that, neither he counted the bags, nor he verified what the bags actually contained. It was also admitted by him, that he had a tea stall near the customs office and he regularly supplied tea to the customs officials. 11. PW 4, a constable, stated that they were waiting on the road and caught the auto van which was driven by the accused. He further stated that there were 26 numbers of plastic bags and one gunny bag containing suspected ganja and after weighing, it was found that the bags contained 310 kgs of ganja. According to him, Inspector Ajoy Sen Deka (PW 6) prepared the seizure memo. This witness also stated that the PW 3 Nur Hussain, was residing in front of their office at Tezpur and previously also said Nur Hussain stood witness to search and seizure in 2/3 cases. 12. The PW 5, another constable of the Customs Intelligence Branch, stated that PW 7 Pranesh Dhar conducted the search in the vehicle carrying suspected contraband ganja, after bringing the vehicle to Customs office. PW 8 was the driver. According to him, after search of the vehicle, the customs officials told him that there were suspected ganja in the vehicle driven by the accused. During cross examination this witness stated that at the time of interception of the vehicle by the team of the Customs officials, he did not notice whether any other person was present there or not. Again he stated that he saw someone near the customs office. 13. PW 9 the Superintendent of Customs Preventive Force, stated that PW 6 Ajay Sen Deka received a secret information, that an auto van bearing registration No. AS-13A-4343 loaded with suspected goods was coming from Division ghat Road. The information was passed over to him and immediately they planned to caught the vehicle and reached the place at Mission Chariali and was waiting there. The information was passed over to him and immediately they planned to caught the vehicle and reached the place at Mission Chariali and was waiting there. Noticing the said vehicle as described in the information, they stopped the vehicle and on search it was found that the vehicle was driven by the accused Sahidur Rahman and there were 27 bags containing suspected ganja. They took the vehicle and the accused into custody. According to him, they requested two of the persons present there to stand witness and took the vehicle along with the accused as well as the witnesses to their office situated at LB Road, where Inspector Ajoy Sen Deka weighed the suspected ganja and found that there was 310 kgs of suspected ganja. PW 9 further stated, that six samples were drawn, two from each bag and each sample contained 25 grams. According to him, the secret information was received by Ajay Sen Deka and not by Pranesh Dhar. In cross, he again stated that the seizure of contraband was made at the place of detection and Inspector Pranesh Dhar prepared the seizure memo Ext. 4, who was the seizing officer. 14. PW 1 the Deputy Director of FSL deposed that he received a parcel consisting of three exhibits in the envelopes and the envelopes were marked as S1, S2 and S3. The chemical examination of the samples gave positive test for cannabis. He also proved the report as Ext. 1. 15. A dispassionate scrutiny of oral testimony of the prosecution witnesses makes it appear, that it was the specific case of the prosecution that a secret information was received which was reduced to writing and on the basis of such secret information, the Customs officials laid ambush at Mission Chariali at about 9' O' clock at night and apprehended the vehicle driven by the accused carrying the suspected ganja. Admittedly, no search and seizure was made at the place, where the vehicle was apprehended. However, from the evidence of the prosecution witnesses as well as the statement of the accused/appellant recorded u/s. 313 CrPC seizure of the suspected ganja was not in dispute, though he had given an explanation thereto. 16. PW 6 in his examination-in-chief stated that the secret information was received by Pranesh Dhar (PW 7) and was passed on to Superintendent Taufiq Hussain. 16. PW 6 in his examination-in-chief stated that the secret information was received by Pranesh Dhar (PW 7) and was passed on to Superintendent Taufiq Hussain. Whereas during cross-examination, he stated that he himself received the secret information and recorded the same in the relevant register. PW 7 and PW 9 also deposed that the secret information was received by PW 6. However, no such information stated to have been reduced to writing either by PW 6 or PW 7, was proved in this case. Admittedly, the secret information was recorded in the concerned register. No material was brought on record to show that the copy of such secret information reduced to writing was sent to the superior officer, by the officer concerned, as per requirement of Section 42 (2) of the NDPS Act. 17. Section 42 (2) NDPS requires that where an official of the department mentioned in Section 42 takes down any information in writing under sub-section (1), he shall within 72 hours send a copy thereof to his immediate official superior. Apex Court in Sukdev Singh v. State of Haryana reported in (2013) 2 SCC 212 held that non-compliance with the provision of section 42 (2) of the NDPD Act is incurable illegality. In State of Rajasthan v. Babulal reported in (2012) 14 SCC 215 also the Apex Court held that total non-compliance with the provision of section 42 (2) is fatal. In a criminal case prosecution is under obligation to prove each and every facts necessary to establish the charge beyond reasonable doubt. In the instant case, though the PW 6 categorically stated that he recorded the secret information in the relevant register, no evidence has been adduced to prove, that copy of the secret information, which was reduced to writing, was sent to the official superior as mandated by section 42 (2) NDPS Act. From the prosecution evidence, it is therefore, crystal clear that there was total non-compliance with the provision of Section 42 (2) of the NDPS Act. 18. Learned Asstt. Solicitor General of India, relying on a decision of the Apex Court in State of Haryana v. Jainail Singh & Ors reported in (2004) 5 SCC 188 , submits that compliance of Section 42 was not necessary in the instant case and as such, non-compliance of the provision of section 42 (2) NDPS would not vitiate the trial. According to learned Asstt. According to learned Asstt. SGI, Mr. Keyal, in the present case, provision of Section 43 NDPS Act would apply and not Section 42. 19. The specific case of the prosecution was that the secret information was received and it was written down and on the basis of such secret information they laid ambush at night and caught the vehicle carrying contraband articles and the search and seizure was made on the basis of secret information which was reduced to writing. It was not the case of the prosecution, that in course of routine checking on the public place, the contraband was seized. Had it been the case of the prosecution, that in course of routing checking on the public place, the contraband article was seized, in that case, certainly the provision of Section 43 of the NDPS Act would have applied. Therefore, on the facts of the present case, the decision in State of Haryana v. Jainail Singh & Ors. is of no help to the prosecution. Learned trial court held that since there was oral evidence, that the information was reduced to writing and the same was passed over to the senior officers, the requirement of Section 42 (2) of the NDPS Act was fulfilled, without taking into consideration the evidence of the prosecution witnesses, more particularly PW 6, PW 7 and PW 9, who stood contradicted on the material fact, as to recording of the secret information u/s. 42 Sub-Section (1). Moreover, there was no evidence at all, that the copy of such information was sent to the superior officer as per mandate of Sub-Section (2) of section 42 of the NDPS Act. 20. One should bear in mind that the provisions of NDPS Act provides for stringent punishment for commission of offence in respect of the contraband drugs in order to control and regulate the operation of the contraband drugs. At the same time the statute also provided same procedural safeguard to avoid any harm to innocent person or to prevent the abuse of the process of law, which are obviously intended to be followed strictly. At the same time the statute also provided same procedural safeguard to avoid any harm to innocent person or to prevent the abuse of the process of law, which are obviously intended to be followed strictly. The Apex Court, in State of Punjab v. Balbir Singh reported in (1994) 3 SCC 299 , emphasizing the requirement of strict compliance of the procedure provided in the statute to safeguard the innocent citizen, held as under :- "The object of NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid harm to the innocent persons and to avoid abuse of the provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. Therefore these provisions make it obligatory that such of those officers mentioned therein, on receiving an information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to Section 42(1). To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case and therefore vitiates the trial." 21. The testimony of PW 2 & PW 3, the so-called independent witnesses as well as PW 4, crystallizes that PW 2 and PW 3 can by no stretch of imagination be considered as independent witnesses. Admittedly tea stall of PW 3 was in front of the custom office at Tezpur and he used to supply tea to the custom official regularly. The PW 4, a constable of the custom department, categorically stated that previously also in 2/3 cases, PW 3 stood as witness to the search and seizure, indicating that PW 3 was a stock witness of the prosecution. PW 2 also categorically stated that he was the regular suppler of the custom department and because of his acquaintance with the custom officials, he was called to the office and his signatures were taken on a number of papers and in fact, in so many words he admitted, that he was not a witness to search and seizure and only because of his acquaintance with the custom officials, his signatures were taken on various papers. What therefore crystallizes from the above evidence is that there was no independent witness to the search and seizure in the present case. 22. What therefore crystallizes from the above evidence is that there was no independent witness to the search and seizure in the present case. 22. Section 100 (4) CrPC requires that before making a search, the officer or the person who conduct the search shall call upon two or more independent and respectable inhabitant of the locality in which, place to be searched is situate or of any other locality, if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and seizure, and the search is required to be made in presence of such independent witness. The requirement of presence of independent witness in the process of search and seizure, more particularly when the offence is of serious in nature and provides for stringent punishment, is necessary to make the process of search and seizure transparent and credible. Absence of any effort of the seizing officer to conduct the search and seizure in presence of independent and respectable person and feeble attempt of the prosecution to project the stock witness as independent witness, was certainly a circumstance to cast doubt on the credibility of the entire exercise of the search and seizure in the present case, more particularly when the search and seizure was not made at the place where the vehicle was caught on the basis of secret information. 23. Admittedly, there were 27 bags containing suspected ganja. PW 7 stated that he collected three samples from each bags and nine samples containing 25 grams each were sent for chemical examination, whereas, according to PW 9, six samples were drawn only from three bags, two samples from each bag containing 25 gm each. PW 6 also stated that samples were drawn only from three bags out of 27 bags seized containing suspected ganja. The testimony of the PW 6 and PW 9 finds support from the PW 1, the Deputy Director, FSL, who examined the samples, inasmuch as, according to PW 1, he received only three samples and not nine samples as deposed by the PW 7. When 27 bags containing suspected ganja of varied quantity were seized, sending sample only from three bags was gross violation of the procedure for taking sample of ganja prescribed by the Govt. When 27 bags containing suspected ganja of varied quantity were seized, sending sample only from three bags was gross violation of the procedure for taking sample of ganja prescribed by the Govt. of India, inasmuch as, the sample collected only from three bags out of 27 bags demonstrated that the sample was not at all representative. That apart, failure of the prosecution to send sample from the remaining 24 bags for chemical examination appears to be a serious lapse inasmuch as, appellant could not be held liable for possessing any contraband contained in the remaining 24 bags, reason being that there could not be any presumption that the 24 bags also contained contraband ganja in absence of evidence to that effect. Non-examination of the suspected article found in the 24 bags also casts a doubt on the prosecution case as to the quantity of contraband articles found in possession of the appellant. For this lapse also, prosecution case is not above board. 24. Non-compliance with the mandatory provision of Section 42 (2) of the NDPS Act, absence of any independent witness to search and seizure as well as failure of the seizing officer to collect sample from 24 bags out of 27 bags seized rendered the impugned judgment of conviction and sentence under Section 20(b)(ii)(C) unsustainable, inasmuch as, no one can be convicted for possessing contraband drugs and as such, the appeal filed by the accused deserves to be allowed. Accordingly, the appeal stands allowed and the conviction and sentence of the accused/appellant is set aside. The accused be released if not required in any other case. 25. Send back the LCR.