JUDGMENT : J.B. Pardiwala, J. 1. As both the captioned Appeals arise from a selfsame judgment and order of conviction passed by the 4th Additional Special Judge, Sabarkantha at Modasa, in the N.D.P.S. Case No. 1 of 2015 (Old N.D.P.S. Case No. 4 of 2009), those were heard analogously and are being disposed of by this common judgment and order. 2. Both the appellants (original accused Nos. 1 and 2 respectively) were put on trial in the Court of the Special Judge, Sabarkantha at Modasa, for the offences punishable under Secs. 8(c), 20(b)(ii), 20(c) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the N.D.P.S. Act'). 3. At the conclusion of the trial, the trial Court held both the appellants guilty of the offences enumerated above. 4. The appellant of the Criminal Appeal No. 638 of 2015, namely Yusufbhai Ismailbhai Vohra, came to be sentenced to undergo 20 years of rigorous imprisonment with fine of Rs. 2 lakh and in default of the payment of the amount of fine, to undergo further 3 years of rigorous imprisonment. 5. The appellant of the Criminal Appeal No. 1217 of 2015, namely Farooq Ganibhai Vora, came to be sentenced to undergo 10 years of rigorous imprisonment with fine of Rs. 1 lakh and in default of the payment of the amount of fine, to undergo further 1 year of rigorous imprisonment. I. Case of the Prosecution: 6. One Shri H.K. Mukherjee, Intelligence Officer, Narcotics Control Bureau, Ahmedabad, lodged a complaint in writing dated 27th August, 2009 in the Court of the Special Judge, Sabarkantha, for the offences enumerated above. The lodging of the complaint culminated in the N.D.P.S. Sessions Case No. 4 of 2009 (New N.D.P.S. Case No. 1 of 2015). The complaint reads thus: "3. The complainant states that the Narcotics Control Bureau, Ahmedabad had received a specific information on 27-2-2009 that "one Yusuf Ismail Vohra @ Yusuf S.T.D. wala of Ahmedabad is most likely to enter in Gujarat along with one Farooq through Ratanpur Check-Post on Rajasthan-Gujarat Border within a day or two, with consignment of 20 kgs. of Charas in his blue coloured Cielo Car No. GJ-1-PP-5973. Yusuf S.T.D. wala was earlier sentenced in a charas case and is absconding since jumping parole in the year 2006. He has purchased this consignment of charas from one Abdul Gani Bhat of Srinagar (Kashmir)". of Charas in his blue coloured Cielo Car No. GJ-1-PP-5973. Yusuf S.T.D. wala was earlier sentenced in a charas case and is absconding since jumping parole in the year 2006. He has purchased this consignment of charas from one Abdul Gani Bhat of Srinagar (Kashmir)". This information was submitted to the Superintendent, Narcotics Control Bureau; Ahmedabad immediately. 4. On the basis of said information, a team of officers and staff members of N.C.B., Ahmedabad was formed for taking action. Two panch-witnesses were called at Samlaji Circuit House. Accordingly, the panch-witnesses arrived at Samlaji Circuit House at 16-00 hrs. on 27-2-2009. After explaining intelligence to the panch-witnesses, the team along with panch-witnesses proceeded to Ratanpur Check-Post and reached there at about 16-45 hrs. on 27-2-2009. On reaching there, the team along with panch-witnesses kept watch over vehicles coming from Udaipur side to Ahmedabad at Ratanpur Check-Post. 5. During continued watch at about 1-30 hrs. on 1-3-2009, a Car bearing Registration No. GJ-l-PP-5973 was noticed to pass through Ratanpur Check-Post coming from Udaipur side and to pass towards Ahmedabad and while on passing through the said check-post, the said car was stopped. Thereafter, N.C.B. Officers asked name of the driver to which he introduced himself as Faroothai Ganibhai Vohra of Dakor, Nadiad and the person sitting besides him introduced as Yusuf Ismail Vohra of Ahmedabad. Then the N.C.B. Officers and panch-witnesses introduced themselves to occupants of the car and informed that they had information about concealing of about 20 kgs. of Charas in the said car by Yusuf Ismail Vohra of Ahmedabad. Hence the N.C.B. team wanted to carry out search of the said car and personal search of above two persons. After that, the personal search of Yusuf Ismail Vohra and Farooq Ganibhai Vohra was conducted after informing them their right to be searched before a Gazetted Officer or a Magistrate under Sec. 50 of N.D.P.S. Act, 1985, which they declined and offered their personal search to the N.C.B. officers present there. The search of Yusuf Ismail Vohra resulted in the recovery of 5 documents, one Nokia Mobile Phone, one Airtel S.I.M. card, one Idea S.I.M. card and Rs. 4448/- (Cash) and further one document, one Bleu mobile phone, one Reliance S.I.M. card and Rs. 40/- were recovered from Farooq Ganibhai Vohra, out of which Rs. The search of Yusuf Ismail Vohra resulted in the recovery of 5 documents, one Nokia Mobile Phone, one Airtel S.I.M. card, one Idea S.I.M. card and Rs. 4448/- (Cash) and further one document, one Bleu mobile phone, one Reliance S.I.M. card and Rs. 40/- were recovered from Farooq Ganibhai Vohra, out of which Rs. 40/- was returned to Farooq Ganibhai Vohra in presence of panch-witnesses as detailed in the seizure panchnama. On questioning about concealment, Yusuf Ismail Vohra told to the N.C.B. officers that charas was concealed in secret cavity designed backside of front and rear number plates and also inside the L.P.G. kit installed in the dicky of Car. On removing the number plates and opening the L.P.G. kit, total 11 (eleven) packets were found wrapped in brown coloured adhesive/scotch. On opening one of the packets, blackish grey coloured substance was found in the shape of laddu. On testing a small quantity of the said substance with the drug detection kit, the substance gave positive result for "Charas"; a Narcotic Drug; that thereafter all the packets were given marks as A to K; that it was not feasible to conduct further proceedings on the spot as it being Highway with vehicular and insufficient light, it was agreed upon and decided to conduct further proceedings at Samlaji Circuit House and the accused Yusuf Ismail Vohra, the driver of the car namely Farooq Ganibhai Vohra and Panchas agreed to the same. Thereafter, the officers, Panchas, N.C.B. staff, Yusuf Ismail Vohra and Farooq Ganibhai Vohra came to Samlaji Circuit House along with Cielo Car No. GJ-1-PP-5973. Further, proceedings were conducted at the Circuit House in presence of the Panchas, Yusuf Ismail Vohra and Farooq Ganibhai Vohra. 6. Thereafter, each packet was opened and small quantity of the substance contained therein was tested with the drug detection kit. All the tests answered positive for charas a Narcotic drug. On weighing all the 11 packets of charas, it weighted to 20.746 kgs. (Gross). Thereafter, two representative samples each weighing 25 gms. were drawn from all the 11 packets and kept in separate envelopes and marked as A1 to K1 and A2 to K2. All the tests answered positive for charas a Narcotic drug. On weighing all the 11 packets of charas, it weighted to 20.746 kgs. (Gross). Thereafter, two representative samples each weighing 25 gms. were drawn from all the 11 packets and kept in separate envelopes and marked as A1 to K1 and A2 to K2. All the aforementioned 11 packets of charas marked as A to K and 22 envelopes containing samples marked as A1 to K1 and A2 to K2 were packed properly and sealed with seal "NARCOTICS CONTROL BUREAU" AZU 6 in presence of Panchas as well as the accused Yusuf Ismail Vohra and Farooq Ganibhai Vohra in a manner described in the panchnama dated 27-2-2009 to 1-3-2009. 7. Thus, total 20.746 kgs. (Gross) of Charas was seized vide panchnama dated 27-2-2009 to 1-3-2009 under the provisions of the N.D.P.S. Act, 1985 (as amended). 1 Nokia mobile phone, 1 Bleu mobile phone, 1 Airtel S.I.M. card, 1 Idea S.I.M. card, 1 Reliance S.I.M. card, 6 documents, Rs. 4448/- (cash) and one Cielo Car (No. GJ-1-PP-5973) with key (one) as detailed in the panchnama were also seized. Thereafter, both the occupants of Cielo Car were summoned under Sec. 67 of N.D.P.S. Act, 1985 and their statements were recorded on 1-3-2009. 8. That Yusuf Ismail Vohra voluntarily stated in his statement dated 1-3-2009 that during 1996-1997, he started consuming charas after meeting a Kashmiri person. One person namely Rashid Zargar came in contact with him about the dealing of charas. In the year 1999, he was arrested by N.C.B. Ahmedabad with 1.6 kgs. of Charas and sent to Jail, where he met a Kashmiri person namely Abdul Gani Bhat; that in the year 2006, he was granted 5 days parole on the grounds of his son's marriage; that after coming out from Jail on parole, he did not go back to Jail on completion of period of parole and remained absconding; During the year 2007, he went to the residence of Abdul Gani Bhat situated at Radio Colony of Kashmir, who was released from Jail; that he told to Abdul Gani Bhat that he was in need of money as such he wanted to do business of charas and on his request, Abdul Gani Bhat gave him 2 kgs. of Charas after seven days, which he brought to Ahmedabad by bus and after selling it, Yusuf paid the money to Abdul Gani Bhat. Again, he brought 5 kgs. of Charas in the month of December, 2008 and again the money was paid to Abdul Gani Bhat after selling the Charas; further, he stated that he purchased a Cielo Car No. GJ-1-PP-5973 in the year 2007 from Hashmukh Desai @ Rs. 25,000/-. He wanted to fit L.P.G. Kit in the said Car due to high rate of petrol, but the L.P.G. Kit could not be fitted at Ahmedabad due to rejection by the R.T.O. Ahmedabad for being old vehicle. So, he made the vehicle's ownership transferred to his cousin namely Anwar Adambhai Vohra of Anand, but the R.T.O. Anand also denied for fitting of L.P.G. kit in the said vehicle. Further, he clarified that since, there was no option for income, he decided to do the dealing/supply of charas. On 22-2-2009, he left for Kashmir by his Cielo Car No. GJ-1-PP-5973 at about 19-00 hrs.; he took one person namely Farooq Ganibhai Vohra from Thasra, Dakor for driving purpose. He used to give Rs. 5,000/- to Farooq per trip and Farooq was also in need of money. They knew each other since earlier days. He knew that indulging in illegal drug trafficking case is a crime, even though he got involved in the said crime for earning money quickly. On 25-2-2009, he reached at the residence of Abdul Gani Bhat, situated at Radio Colony, Jawahar Nagar, Srinagar at night. He used to contact Abdul Gani Bhat on his Mobile No. 9797869338 from his (Yusuf) mobile No. 9714528660. Further, he stated that die packets containing Charas were concealed by Abdul Gani Bhat, Farook and by himself in special cavities specially designed in his Cielo Car, and thereafter, on 26-2-2009 in the morning at about 6-00 hrs. he along with Farooq left for Ahmedabad by his said car. On the way, his car became off road on 27-2-2009 at Kelwa towards Ajmer and after repairing the vehicle, he started from Kelwa at about 1-00 hrs. on 28-2-2009. Again, after running about 10 kms., his car had a problems and was off road. Then, he made the battery of the car charged for which he had to stay there for 4-5 hrs. on 28-2-2009. Again, after running about 10 kms., his car had a problems and was off road. Then, he made the battery of the car charged for which he had to stay there for 4-5 hrs. After that, around 9-00 O'clock in the night, he started journey towards Ahmedabad. While passing through Ratanpur Check-Post at 1-00 O'clock on 1-3-2009, the N.C.B. officers stopped and searched his vehicle and 11 packets containing 20 kgs. of charas were found. After that, the substance kept in the packets was tested and all of them were taken to Samlaji Circuit House. He further stated that the Mobile No. 9714528660 used by him was in the name of Farooq Ganibhai Vohra. He stated that Abdul Gani Bhat was residing at Radio Colony, Jawahar Nagar, Srinagar. Abdul Gam's age was around 55 years; height around 5'7" and was of fair complexion and keeps normal moustache. He has admitted to have indulged in illegal drug trafficking case. On asking, he stated that he used to sell the charas to the consumer by making "VATANA" of 1-1 gm. He was arrested on 1-3-2009 at 15-00 hrs. by serving upon him a memo of arrest setting out the grounds of his arrest therein. 9. Thereafter, the Car driver namely Farooq Ganibhai Vohra of Cielo Car No. GJ-1-PP-5973 was summoned to give his statement. Accordingly, Farooq Ganibhai Vohra in his statement dated 1-3-2009 recorded under Sec. 67 of N.D.P.S. Act, 1985 has stated that he was not having any permanent job, as such, he used to do the job of vehicle driving for which he used to earn Rs. 150/- per day. He used to get such type of driving job 2-3 times in a week. He stated that he was in the possession of driving licence having its No. N.D.N./123045/98. Further, he stated that he is in relation being from the same caste, with Yusuf Ismail Vohra. He met him before 3-4 months on Yusufs daughter's marriage. Yusuf used to stay in Ahmedabad, but he (Farooq) did not know about Yusufs address. Yusuf knew driving of vehicle, but did not have driving licence. He further stated that Yusuf asked him to proceed to Kashmir for which he (Yusuf) asked to pay him Rs. 5,000/- after coming back from Kashmir. Yusuf used to stay in Ahmedabad, but he (Farooq) did not know about Yusufs address. Yusuf knew driving of vehicle, but did not have driving licence. He further stated that Yusuf asked him to proceed to Kashmir for which he (Yusuf) asked to pay him Rs. 5,000/- after coming back from Kashmir. On 22-2-2009, in the evening, while he was at Dakor, Yusuf came with a blue coloured Car bearing Registration No. GJ-1-PP-5973 and both of them proceeded to Kashmir. The said car was driven by Yusuf and himself one by one en route. Due to being first time for going to Kashmir, he drove the car via Kota of Rajasthan, Punjab and reached to Kashmir at about 23-00 hrs. at night on 25-2-2009. After reaching at Kashmir, they went to residence of a Kashmiri person and had tea and snacks at the residence of said Kashmiri person. After that, about 20 kgs. of Charas was kept inside the Yusufs said vehicle by three of them. At about 6-00 hrs. in the morning of 26-2-2009, they left for Ahmedabad via Punjab, Haryana, Jaipur, Udaipur. On the way, on 27-2-2009, the said car became off road at Kelwa and after getting it repaired, they started journey at about 2-3 O'clock and after going about 10-12 kms. Again their vehicle became off road. Again, after repairing the vehicle, they started around 9-00 O'clock at night towards Ahmedabad. While passing through Ratanpur Check-Post on 1-3-2009 during early hours, their vehicle was stopped by N.C.B. officers and asked about concealment of Charas. In this, Yusuf and he admitted to have concealed 20 kgs. of Charas in specially made cavity in the backside of front and rear number plates and inside the L.P.G. kit installed in the dicky of the said car. Further, he stated that during personal search, one mobile phone (Blue), one Reliance S.I.M. card and one driving licence (duplicate) and Rs. 40/- were recovered, out of which Rs. 40/- was returned to him. He had given the physical description of the Kashmiri person, from whom the Charas was procured; he (Farooq) was not aware about his name. The Kashmiri person was having good physique. His age would be around 60 yrs., and had fair complexion, and had moustache. 40/- were recovered, out of which Rs. 40/- was returned to him. He had given the physical description of the Kashmiri person, from whom the Charas was procured; he (Farooq) was not aware about his name. The Kashmiri person was having good physique. His age would be around 60 yrs., and had fair complexion, and had moustache. While asking about Yusuf, he stated that Yusuf was dealing with Charas from earlier days and he had knowledge that he (Yusuf) was in jail for illegal activities. Yusuf used the Mobile No. 9714528660 of Airtel S.I.M. Card which was in his name. He stated that he was staying in rented accommodation for which he used to pay Rs. 350/- per month. He further stated that he had no bank account and fixed deposit. He had no vehicle also in his name. He stated that the mobile number of Reliance S.I.M. Card used by him was in his name. He admitted to have indulged in illegal ding trafficking case. He was arrested on 1-3-2009 at 14-40 hrs. by serving upon him a memo of arrest setting out the ground of his arrest therein. 10. Thereafter, a summon was issued to Shri Hashmukh Maganlal Desai, seller of Cielo Car No. GJ-1-PP-5973 to Yusuf Ismail Vohra, who stated in his statement dated 27-3-2009 recorded under Sec. 67 of N.D.P.S. Act, 1985 that he was asked to appear before the N.C.B. office on 25-3-2009 vide Summons No. (245) dated 5-3-2009. Accordingly, he appeared before N.C.B. office on the date and time specified in the aforesaid summons, but he did not bring the relevant documents, with him as such, he was asked to appear on 27-3-2009 with relevant papers with regard to the Car. On 27-3-2009, he appeared before the N.C.B. officer to depose his statement. He stated that he is doing the business of buying and selling of old vehicles for last 12-14 years. His two brothers namely Narayanbhai, aged 50 years and Rajendrabhai, aged 41 years are also with him in the said business. Further, he stated that he used to purchase old vehicle from the party and after repairing the said vehicles, he used to sell it of to the new party. He stated that he knew Yusuf Ismail Vohra for last 10 years. Further, he stated that he used to purchase old vehicle from the party and after repairing the said vehicles, he used to sell it of to the new party. He stated that he knew Yusuf Ismail Vohra for last 10 years. Yusuf purchased a Maruti-800 Car from him in the year 1999 and also had knowledge that Yusuf was arrested for charas dealing and was in jail. On asking, he stated that he came to know through newspaper that Yusuf was again arrested on 1-3-2009 with Charas. Further, he stated that Yusuf came to his shop for three times in the year 2007, though he could not remember the exact dates of his coming. After selection of Cielo Car (No. GJ-1-PP-5973) Yusuf purchased it on 14-7-2007 by cash @ Rs. 25,000/-. At the time of delivery, he handed over the original R.C. book, 3rd Party Insurance etc., to Yusuf. After taking the delivery of the said car, again Yusuf came to his shop after 2-3 days and said to transfer the ownership of the said vehicle in the name of Shri Anwarbhai A. Vohra of Anand. In this regard, he gave residential proof of Anwarbhai and also requested to transfer the ownership immediately. On his request, he submitted the papers of the said car to R.T.O. Ahmedabad on 21-7-2007 and thereafter took out the N.O.C. He produced the xerox copy of R.C. book, N.O.C. duly signed by him as a token of proof. He further stated that he did not give any delivery note to Yusuf at the time of selling of vehicle and at present he is not having any receipt towards car selling to Yusuf. He stated that he did not know Anwarbhai of Anand. He runs his dealership in the name of Sai Motors, Paldi, Ahmedabad and produced a copy of his business/visiting card duly signed by him. On showing the photograph of Yusuf Ismail Vohra, Hashmukh Maganlal Desai confirmed that he (Yusuf Ismail Vohra) was the same person, who purchased the said Car from his shop. 11. He runs his dealership in the name of Sai Motors, Paldi, Ahmedabad and produced a copy of his business/visiting card duly signed by him. On showing the photograph of Yusuf Ismail Vohra, Hashmukh Maganlal Desai confirmed that he (Yusuf Ismail Vohra) was the same person, who purchased the said Car from his shop. 11. Further, summons was issued to Anwarbhai Adambhai Vohra R/o. 64-Bhalej Road, Rojina Park, Anand, cousin of Yusuf Ismail Vohra, in whose name the ownership of Cielo Car No. GJ-1-PP-5973 was transferred stated in his statement dated 5-6-2009 recorded under Sec. 67 of N.D.P.S. Act, 1985 that he did not receive the summons dated 9-3-2009 as the same was sent to the address of 80, Ismailnagar, Jakatnaka, Anand. His said residence was sold in the year 2003. He runs a tea stall near Sabras Hotel, Anand. He earns Rs. 300-400/- daily. Apart from this, he has no extra income. On asking, he stated that Yusuf Ismail Vohra is his cousin in relation. He had knowledge that Yusuf was in Jail for involvement in some illegal activities. He came to his residence sometimes in the year 2007 to meet their family members. Yusuf told them that he was released from Jail. In the year 2007, Yusuf came to his residence on one day, when he was not present in his home, though, he could not remember the exact date of Yusuf's coming to his residence. After coming to his residence, Yusuf asked to his wife to give his I.D. proof for mobile connection. On his request, his wife gave the original Voter I. Card to Yusuf and after taking the original Voter I. Card, Yusuf left and did not come back after that and even he did not return his voter I. Card also. On asking, he stated that he had knowledge that Yusuf was arrested for involving in charas case and presently in jail. Further, he stated that he had no knowledge about the vehicle used by Yusuf for taking Charas, which was in the name of him (Anwarbhai). Further, he stated that how Yusuf purchased the said vehicle in his name and how utilized it, he had no knowledge at all. On showing the signature of Vohra Anwar Adambhai made in Form No. 30, he stated that the signature available in the said Form was not made by him. Further, he stated that how Yusuf purchased the said vehicle in his name and how utilized it, he had no knowledge at all. On showing the signature of Vohra Anwar Adambhai made in Form No. 30, he stated that the signature available in the said Form was not made by him. He stated that he had knowledge that Yusuf was apprehended with Charas on 1-3-2009 and presently in jail, but he had no knowledge about the Cielo Car (No. GJ-1-PP-5973). Further, he stated that he is not having any vehicle. He is a poor person. He produced the copy of his wife's Voter I.D. Card and Electricity Bill duly signed by him. 12. On the basis of statement of Yusuf Ismail Vohra, he was placed under arrest at 15-00 hrs. on 1-3-2009 and Farooq Ganibhai Vohra was placed under arrest at 14-40 hrs. on 1-3-2009 by serving upon them memo of arrest detailing the grounds of their arrest as mentioned in foregoing paras. Yusuf Ismail Vohra and Farooq Ganibhai Vohra were produced before the Hon'ble Sessions Court, Himmatnagar on 1-3-2009 and they were remanded to judicial custody at Sub-Jail, Himmatnagar. 13. The Superintendent of N.C.B., Ahmedabad was informed about the search, seizure and arrest under the provision of Sec. 57 of N.D.P.S. Act, 1985 well within time frame. 14. That the samples drawn from the packets of char as seized on 1-3-2009 were sent to C.R.C.L., New Delhi by insured post on 2-3-2009. The report received from C.R.C.L., New Delhi confirmed positive for Charas: 15. That the complainant further submits that inspite of strenuous efforts Kashmiri person namely. Abdul Gani Bhat of Srinagar (J. & K.), who involved in conspiracy and commissioning of this offence could not be located and investigation against him could not be completed because of his non availability. Complainant further submits that summons have been issued to Abdul Gani Bhat R/o. Radio Colony, Jawaharnagar, Srinagar (J. & K.), on 2-3-2009 by R.P.A.D. to appear before the N.C.B. officer, N.C.B. Ahmedabad on 16-3-2009, but the summons was received back by this office with specific remarks of postal authority "Incomplete address". During investigation, it was revealed that the Mobile No. 9797869338 used by Abdul Gani Bhat was in the name of Mohd Maqbool S/o. Amma Kuchay R/o. Tullamulla, Ganderbal, Srinagar. Accordingly, Shri Mohd. During investigation, it was revealed that the Mobile No. 9797869338 used by Abdul Gani Bhat was in the name of Mohd Maqbool S/o. Amma Kuchay R/o. Tullamulla, Ganderbal, Srinagar. Accordingly, Shri Mohd. Maqbool was issued summons vide this office letter No. NCB/AZU/CR-01/2009/422 dated 15-4-2009 with direction to appear before the N.C.B. officer, N.C.B. Ahmedabad on 30-4-2009, but the said summons was also received back undelivered with the specific remarks of postal authority "Incomplete address". Apart from above, the Zonal Director N.C.B. Jammu was also requested vide this office letter No. NCB/AZU/CR-01/2009/223 dated 1-3-2009 to make efforts to verify the address of Abdul Gani Bhat and search his house and to apprehend him for investigation purpose. Further, the matter was taken up with S.S.P., Srinagar Police by Jammu Zonal Unit vide their letter No. XII/V/JZU/2009/FUA/641 dated 2-3-2009. The Superintendent, Jammu Zonal Unit was further requested to intimate the present status of the case vide this office letter No. (878) dated 28-7-2009. Besides, the Zonal Director, Jammu Zonal Unit, Jammu was requested vide this zonal unit letter No. (881) dated 28-7-2009 to enquire into the matter especially on the mobile No. 9797869338 in question, which is in the name of Mohd. Maqbool and record his statement under Sec. 67 of N.D.P.S. Act, 1985 in order to ascertain the actual user of the above mobile number and his relation/connection, if any with Abdul Gani Bhat of Srinagar. Also requested to make efforts to trace out Abdul Gani Bhat. Efforts are afoot to trace this person, hence, the prosecution reserves its right to file separate complaint after he is located and investigation against him is completed. 16. That the complainant submits that in support of this case, the prosecution relies upon the witnesses, the documents and list of Muddamal appended as Annexure 'A', 'B' and 'C' to this complaint respectively. The complainant also reserves its right to examine more witnesses and also to adduce more evidence if need so arises. The complainant submits that to produce, manufacture, possess, sell, purchase, transport, ware house, consume, import inter state, export inter state, import into India, export from India or transit any narcotic drugs or psychotropic substance is prohibited under Sec. 8(c) of N.D.P.S. Act, 1985 (as amended) and punishable under Sec. 20(b)(ii)(C), if it is in commercial quantity. Charas is defined in Sec. 2(iii)(a) of N.D.P.S. Act, 1985. Charas is defined in Sec. 2(iii)(a) of N.D.P.S. Act, 1985. Further, Charas is a Narcotic drug as defined in Sec. 2(xiv) of N.D.P.S. Act, 1985. 17. That the accused Nos. 1 and 2 along with other known and unknown persons entered in a criminal, conspiracy with intention to procure, purchase, sell, transport, store and import interstate Charas and in furtherance to this conspiracy, have actually carried out activities which are prohibited under Sec. 8(c) of the N.D.P.S. Act, and thereby, have committed an offence punishable under Sec. 29 of N.D.P.S. Act, 1985 (as amended). 18. The complainant therefore, prays that taking into consideration above stated facts on records as the accused Nos. 1 and 2 have committed offence punishable under Sec. 8(c) read with Sec. 20(b)(ii)(C) and Sec. 29 of N.D.P.S. Act, 1985, the accused may please be dealt with according to the law." 7. Thus, the case of the prosecution is that the Narcotics Control Bureau, Ahmedabad, received a specific information on 27th February, 2009 that one Yusufbhai Ismailbhai Vohra @ Yusuf S.T.D. wala of Ahmedabad (appellant of the Criminal Appeal No. 638 of 2015) was likely to enter the State of Gujarat along with one Farooq Ganibhai Vora (appellant of the Criminal Appeal No. 1217 of 2015) in a Cielo Car with 20 kgs. of 'charas'. The specific information was that the accused were to enter the State of Gujarat through the Ratanpur Check-Post. The information was to the extent that the accused were travelling in a blue coloured Cielo Car bearing Registration No. GJ-1-PP-5973 and the contraband could be found clandestinely concealed in some parts of the Car. 8. It is the case of the prosecution that one Shri Sanjay Patel, Intelligence Officer, N.C.B., Ahmedabad, reduced the information into writing and communicated the same to his superior officer, namely Shri P.N. Sarvaiya, Superintendent, N.C.B., Ahmedabad. On the strength of the information received by the N.C.B., a close vigil was kept at the Rajasthan-Gujarat border, more particularly at the Ratanpur Check-Post. According to the case of the prosecution, on 1st March, 2009 at 1-30 in the night hours, the car bearing Registration No. GJ-l-PP-5973 was noticed passing through the Ratanpur Check-Post. The officers of the N.C.B. intercepted the Car. The N.C.B. officers found the two accused herein inside the Car. Farooq Ganibhai Vora was driving the Car, whereas Yusufbhai Ismailbhai Vohra was sitting next to the driver. The officers of the N.C.B. intercepted the Car. The N.C.B. officers found the two accused herein inside the Car. Farooq Ganibhai Vora was driving the Car, whereas Yusufbhai Ismailbhai Vohra was sitting next to the driver. The search ultimately resulted in recovery of 'charas' weighing about 20 kgs. The contraband was concealed clandestinely in three parts of the car. Three packets were recovered from a cavity made near the front number-plate. Few packets were recovered from a cavity made inside the L.P.G. kit installed in the car and few packets were recovered somewhere from a cavity made in the rear number-plate. In all, 11 packets were recovered from the Car found wrapped in a brown-colour adhesive/scotch. It appears that some part of the panchnama was carried out at the Ratanpur Check-Post itself and later all other procedures were undertaken at the Shamlaji Circuit House. The samples of the contraband 'chams' were collected and were put in a sealed packet. It also appears that summons were issued to both the accused at the Shamlaji Circuit House, and pursuant to the same, their statements came to be recorded under Sec. 67 of the N.D.P.S. Act. Later, both the accused were arrested and produced on the next date before the Special Judge. Thereafter, the complaint was lodged in the Court of the Special Judge, upon which, cognizance was taken and the accused were put on trial. As they have been convicted for the offences enumerated above, they are here before this Court with their respective Appeal. 9. It appears from the materials on record that so far as the appellant of the Criminal Appeal No. 638 of 2015, namely Yusufbhai Ismailbhai Vohra, is concerned, he has been convicted for the offences under the N.D.P.S. Act for the second time. It appears that in the past he was arrested in connection with a N.D.P.S. offence and was put on trial in the Court of the Special Judge, Ahmedabad, in the N.D.P.S. Case No. 220 of 2000. He was convicted and sentenced to undergo 10 years of rigorous imprisonment with fine of Rs. 1 lakh. It also appears that while undergoing the sentence in connection with the N.D.P.S. Case No. 220 of 2000, he was released on parole. He jumped the parole and committed the second offence, which is the subject-matter of the present Appeal. II. He was convicted and sentenced to undergo 10 years of rigorous imprisonment with fine of Rs. 1 lakh. It also appears that while undergoing the sentence in connection with the N.D.P.S. Case No. 220 of 2000, he was released on parole. He jumped the parole and committed the second offence, which is the subject-matter of the present Appeal. II. Submission on behalf of the Appellant of the Criminal Appeal No. 1217 of 2015: 10. Ms. Dipika P. Bajpai, the learned Counsel appearing for the appellant (Driver), vehemently submitted that the trial Court committed a serious error in holding her client guilty of the offences enumerated above. The principal argument of the learned Counsel is with regard to the non-compliance of the statutory provision of Sec. 42 of the N.D.P.S. Act, more particularly, the non-compliance of the second proviso to Sec. 42(1) of the N.D.P.S. Act. Ms. Bajpai submitted that indisputably the Narcotics Control Bureau had prior information that a car was to pass through the Ratanpur Check-Post carrying narcotics. She submitted that such information was reduced into in writing and was communicated to the superior officer. She also pointed that a close vigil was kept for the entire day, i.e. on 27th February, 2009. On the next day also, for the entire day, i.e. on 28th February, 2009, a close watch was kept. Ultimately, the Car in question alleged to be carrying narcotics was intercepted at 1-30 in the midnight. The search of the car thus, according to the learned Counsel, was undertaken between sunset and sunrise. The submission of the learned Counsel is that the search was undertaken without a search-warrant or any authorisation as mandated by the second proviso to Sec. 42(1) of the N.D.P.S. Act. Ms. Bajpai submitted that if the officer concerned was of the view that it was not possible to obtain a search-warrant or authorisation, then it was obligatory for him to record the grounds of his belief, as mandated in the proviso. Thus, the principal argument of the learned Counsel is with regard to the noncompliance of the mandatory provision of Sec. 42(1) of the N.D.P.S. Act. Ms. Bajpai submitted that the non-compliance of the mandatory provision of Sec. 42(1) of the N.D.P.S. Act vitiated the entire trial, and thereby, has rendered the judgment and order of conviction illegal. In support of such submission, Ms. Ms. Bajpai submitted that the non-compliance of the mandatory provision of Sec. 42(1) of the N.D.P.S. Act vitiated the entire trial, and thereby, has rendered the judgment and order of conviction illegal. In support of such submission, Ms. Bajpai has placed strong reliance on a recent pronouncement of the Supreme Court in the case of State of Rajasthan v. Jagraj Singh @ Hansa, 2016 (11) SCC 687 . 11. The second submission of Ms. Bajpai is with regard to the legality and validity of the entire procedure of search and seizure adopted by the officers of the N.C.B. The submission proceeds on the footing that the entire procedure like drawing of the panchnama, drawing of the samples, sealing, etc., should have been done at the very spot where the Car was intercepted and searched. Ms. Bajpai submitted that the officers committed breach of the standing orders/instructions issued by the Central Government in this regard. She submitted that the Shamlaji Circuit House is at a distance of about 12 kms. from the place where the Car was intercepted and searched. Such procedure adopted by the officers contrary to the standing orders could be said to have caused grave prejudice to the accused rendering the judgment and order of conviction illegal. Ms. Bajpai further submitted that the noncompliance of Sec. 55 of the N.D.P.S. Act has also rendered the judgment and order of conviction illegal. While elaborating this contention, the learned Counsel submitted that as per Sec. 55 of the N.D.P.S. Act, an officer incharge of the concerned Police Station has to take charge and keep the seized articles in a safe custody by affixing proper seal on such articles. She pointed out that having regard to the oral evidence on record in the form of depositions of the officers, there is no proper entry as regards the contraband in the godown register. She pointed out that even the godown receipts on record does not indicate the time the samples were handed over to the Superintendent of the N.C.B., Ahmedabad. Ms. Bajpai further submitted that the possibility of tampering with the seal affixed on the bags which were used for collecting the samples also cannot be ruled out. 12. Ms. Bajpai submitted that her client was just a driver of the vehicle. He hails from a very poor family. He was driving the concerned vehicle only for the purpose of his livelihood. 12. Ms. Bajpai submitted that her client was just a driver of the vehicle. He hails from a very poor family. He was driving the concerned vehicle only for the purpose of his livelihood. He had no idea or knowledge that narcotics had been concealed in the Car in a clandestine manner. According to the learned Counsel, her client could not be said to be in conscious possession of the contraband seized by the N.C.B. 13. In the last, Ms. Bajpai submitted that the trial Court committed a serious error in placing reliance on the confessional statement of her client recorded by the officers of the N.C.B. under Sec. 67 of the N.D.P.S. Act. She submitted that the statement recorded under Sec. 67 of the N.D.P.S. Act could not be said to be true, trustworthy and voluntary. She submitted that the entire procedure adopted by the officers for the purpose of recording of such confessional statement under Sec. 67 of the N.D.P.S. Act was illegal. According to Ms. Bajpai, the statement of the accused under Sec. 67 of the N.D.P.S. Act cannot be said to be a voluntary statement. 14. In such circumstances referred to above, Ms. Bajpai prays that there being merit in all her submissions, those may be accepted and the accused may be acquitted of all the charges. III. Submission on behalf of the Appellant of the Criminal Appeal No. 638 of 2015: 15. Mr. E.E. Saiyed, the learned Counsel appearing for the appellant, submitted that his client was earlier convicted for the offence under the N.D.P.S. Act and was sentenced to undergo 10 years rigorous imprisonment with fine of Rs. 1 lakh. He submitted that later he was found involved in a second offence while he remained at large after being released on parole. Mr. Saiyed pointed out that his client is in jail past almost 14 years. He submitted that the sentence imposed in the first prosecution has been completed and now the sentence of 20 years has started reckoning. He pointed out that if 20 years are to be counted after the expiry of the sentence of 10 years imposed in the earlier prosecution, then his client will have to remain in jail for at least 16 more years. Mr. Saiyed submitted that his client, at the time of filing of the Appeal, was aged 60 years. He pointed out that if 20 years are to be counted after the expiry of the sentence of 10 years imposed in the earlier prosecution, then his client will have to remain in jail for at least 16 more years. Mr. Saiyed submitted that his client, at the time of filing of the Appeal, was aged 60 years. So, by the time he would complete the sentence, he would be almost 76 years of age. Mr. Saiyed, in such circumstances, submitted that if this Court is not convinced with any of the submissions on merits as canvassed by Ms. Bajpai on behalf of the co-convict, then at least, so far as his client is concerned, this Court may direct that the sentence in both the cases to run concurrently. IV. Submission on behalf of the Narcotics Control Bureau: 16. Mr. Kshitij Amin, the learned Standing Counsel appearing for the Narcotics Control Bureau, has vehemently opposed both the Appeals. He submitted that no error, not to speak of any error of law, could be said to have been committed by the Special Court in holding the accused persons guilty of the offences under the N.D.P.S. Act. Mr. Amin submitted that the offence alleged to have been committed by the accused persons is very serious. Both the accused could be termed as drug-traffickers or drug paddlers. He submitted that the persons dealing in narcotics are a menace to the society. Such persons are a big threat to the society at large. Mr. Amin submitted that the contention as regards the non-compliance of the mandatory provision of Sec. 42 of the N.D.P.S. Act is without any merit, because Sec. 42 of the N.D.P.S. Act is not applicable in the present case. According to Mr. Amin, as the search was carried out on a highway, i.e. at a public place, Sec. 43 of the N.D.P.S. Act would be applicable. In such circumstances, according to Mr. Amin, there is no question of complying with the provisions of the second proviso to Sec. 42(1) of the N.D.P.S. Act. However, Mr. Amin, with his usual fairness, submitted that if Sec. 42 is made applicable to the facts of this case, then there is no escape from the fact that the second proviso has not been complied with in this case. However, Mr. Amin, with his usual fairness, submitted that if Sec. 42 is made applicable to the facts of this case, then there is no escape from the fact that the second proviso has not been complied with in this case. He fairly pointed out that the search was carried out between sunset and sunrise, and in such circumstances, the officer concerned should have obtained a search-warrant or authorisation, and if the officer concerned had a reason to believe that a search-warrant or authorisation could not be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, then he was obliged to record the grounds of his such belief and forward the same to the Superior Officer. However, Mr. Amin maintains that Sec. 42 of the N.D.P.S. Act is not applicable but Sec. 43 of the N.D.P.S. Act is applicable. 17. Mr. Amin further submitted that there is no merit as regards the contention that the entire procedure of drawing of panchnama, samples, sealing etc. should have been carried out at the very place where the car was intercepted and searched and could not have been undertaken at the Shamlaji Circuit House which is at a distance of about 12 kms. from the Ratanpur Check-Post. Mr. Amin submitted that the reliance placed by the learned Counsel on the standing orders does not carry the case any further. He submitted that it is true that as far as possible the officers should comply with the standing orders, but for some reason if such administrative instructions are not complied with, the same would not render the search illegal in any manner. To put it in other words, according to Mr. Amin, the same would not vitiate the conviction of the accused persons. Mr. Amin pointed out that the vehicle was intercepted at 1-30 in the night hours on the highway. It was quite dark and the officers were not able to complete the entire procedure at the very same place where the car was intercepted and searched. In such circumstances, the officers had to reach to the Shamlaji Circuit House and complete the entire procedure. 18. Mr. Amin submitted that as regards the statements of the accused persons recorded under Sec. 67 of the N.D.P.S. Act are concerned, they are admissible in law. In such circumstances, the officers had to reach to the Shamlaji Circuit House and complete the entire procedure. 18. Mr. Amin submitted that as regards the statements of the accused persons recorded under Sec. 67 of the N.D.P.S. Act are concerned, they are admissible in law. A proper and legal procedure was adopted by the officers of the N.C.B. before recording the statements under Sec. 67 of the N.D.P.S. Act. The trial Court has believed and accepted such confessional statements of the accused persons to be true, trustworthy and reliable. Mr. Amin submitted that when such statements were recorded under Sec. 67 of the N.D.P.S. Act, the appellants herein were not accused of any offence. They might be in the custody of the N.C.B. officers, but they could not be termed as accused at the relevant point of time. Mr. Amin submitted that both the accused could be said to be in conscious possession of the contraband. He submitted that the clandestine manner in which the contraband was stored in the cavities made in the car itself is sufficient to draw a presumption of conscious possession. Mr. Amin invited the attention of this Court to Sec. 35 of the N.D.P.S. Act which provides for a presumption of culpable mental state. Mr. Amin also submitted that the contention as regards improper method of sealing the samples of the contraband drawn by the officers is also without any merit. The entire search was carried out in presence of the panch-witnesses who, at the relevant point of time, were serving as the Deputy Mamlatdars in the office of the Collector, Sabarkantha. The panch-witnesses have supported the case of the prosecution. 19. Mr. The entire search was carried out in presence of the panch-witnesses who, at the relevant point of time, were serving as the Deputy Mamlatdars in the office of the Collector, Sabarkantha. The panch-witnesses have supported the case of the prosecution. 19. Mr. Amin, in support of his submissions, has placed reliance on the following decisions: (1) Khet Singh v. Union of India, 2002 (4) SCC 380 ; (2) Madan Lal v. State of H.P., 2003 (7) SCC 465; (3) Krishna Kanwar (Smt.) @ Thakuraeen v. State of Rajasthan, 2004 (2) SCC 608 ; (4) Ouseph v. State of Kerala, 2004 (10) SCC 647 ; (5) G. Srinivas Goud v. State of A.P., 2005 (8) SCC 183 ; (6) Ram Kumar v. Central Bureau of Narcotics, 2008 (5) SCC 385 ; (7) State of Rajasthan v. Daul @ Daulat Giri, 2009 (14) SCC 387 ; (8) Ram Singh v. Central Bureau of Narcotics, 2011 (11) SCC 347 ; (9) Kashmiri Lal v. State of Haryana, 2013 (6) SCC 595 ; (10) Baldev Singh v. State of Haryana, 2015 (17) SCC 554; (11) State of Rajasthan v. Jagraj Singh @ Hansa, 2016 (11) SCC 687 20. Mr. Amin prays that there being no merit in both the Appeals, those be dismissed and the judgment and order of conviction be affirmed. V. Submission on behalf of the State: 21. Mr. H.K. Patel, the learned A.P.P. appearing for the State of Gujarat, has also vehemently opposed both the Appeals. He submitted that even if this Court comes to the conclusion that Sec. 42 of the N.D.P.S. Act is applicable and not Sec. 43, then the same in substance could be said to have been complied with. Mr. Patel submitted that although the second proviso to Sec. 42(1) of the N.D.P.S. Act could not be said to have been complied with in its letter and spirit, yet the fact that a report under Sec. 57 of the N.D.P.S. Act of the search and seizure was forwarded to the superior officer is as good as complying with the second proviso to Sec. 42 of the N.D.P.S. Act. To put it in other words, according to Mr. Patel, if there is complete non-compliance of Sec. 42 of the Act, the same would not definitely vitiate the conviction, but if there is partial compliance, then the situation could be said to have been saved for the department. To put it in other words, according to Mr. Patel, if there is complete non-compliance of Sec. 42 of the Act, the same would not definitely vitiate the conviction, but if there is partial compliance, then the situation could be said to have been saved for the department. All other submissions of Mr. Amin have been adopted by Mr. Patel, the learned A.P.P. appearing for the State. 22. Having heard the learned Counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the Special Court committed any error in convicting the accused persons. 23. We first propose to deal with the principal argument of noncompliance of the second proviso to Sec. 42(1) of the N.D.P.S. Act as vociferously canvassed by Ms. Bajpai, the learned Counsel appearing for one of the accused persons. 24. The facts in this case would indicate that the Cielo Car was encountered by the officers at about 1-30 in the night hours, which itself was after sunset and the proceedings in this regard continued right upto 10-00 O'clock in the morning. Thus, the search in this case took place between sunset and sunrise. It is not in dispute that there was prior information that 20 kgs. of 'charas' being transported in a private Car. Such information received by the Intelligence Officer was taken down in writing. Exh. 94 is the intelligence note. According to Mr. Amin, Exh. 94 is a communication of the information to the superior officer. Exh. 94 reads thus: "Intelligence Note: Intelligence received indicator that are Yusuf Ismail Vohra @ Yusuf S.T.D. wala of ahmedabad is most likely to enter in Gujarat along with one Farookh through Ratanpur Check Post on Rajasthan-Gujarat border within a day or two with consignment of 20 kg. of charas in his blue colored Cielo Car No. GJ-1-PP-5973 Yusuf S.T.D. wala was earlier sentenced in a charas case and is absconding since jumping parole in the year 2006. He has purchased this consignment of charas from are Abdul Gani Bhat of Shrinagar-Kashmir. Date : 27-2-2009 Time : 10-30 hrs. Place : Ahmedabad Sd/- Illegible 27-2-2009 (Sanjay Patel) Intelligence Officer N.C.B., Ahmedabad To, Shri P.N. Sarvaiya Saheb Superintendent, N.C.B., Ahmedabad." 25. He has purchased this consignment of charas from are Abdul Gani Bhat of Shrinagar-Kashmir. Date : 27-2-2009 Time : 10-30 hrs. Place : Ahmedabad Sd/- Illegible 27-2-2009 (Sanjay Patel) Intelligence Officer N.C.B., Ahmedabad To, Shri P.N. Sarvaiya Saheb Superintendent, N.C.B., Ahmedabad." 25. We looked into the record to find out whether the original information said to have been received by the Intelligence Officer and reduced into writing is on record or not. However, we noticed that the original information received by the Intelligence Officer is not on record. What is on record is the communication to the superior officer. In such circumstances, we were not in a position to compare the original information said to have been reduced into writing with the information said to have been communicated to the superior officer vide Exh. 94. Be that as it may, we are more concerned with the compliance of Sec. 42(1) of the N.D.P.S. Act. 26. Section 42 of the N.D.P.S. Act is extracted for ready reference which applies to this case. "42. 94. Be that as it may, we are more concerned with the compliance of Sec. 42(1) of the N.D.P.S. Act. 26. Section 42 of the N.D.P.S. Act is extracted for ready reference which applies to this case. "42. Power of entry, search, seizure and arrest without warrant or authorisation:- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the department of Central Excise, narcotics, customs, revenue, intelligence of any other department of the Central Government or of the Border Security Force 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, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence 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 Chapter IV relating to such drug or substance; 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 Chapter IV relating to such drug or substance; Provided 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. (2) Where an officer takes down any information in writing under sub-sec. (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior." 27. At this stage, it would be apposite to reproduce some portion of the evidence of the P.W. 2-Sisramsing Ramsing Sing examined by the prosecution. The P.W. 2-Shri Sing examined at Exh. 74, in his cross-examination, has deposed as under: "At the time of the incident, I, Sanjay Patel and H.K. Mukherjee were serving as the Intelligence Officers at the N.C.B. office, Ahmedabad. I have been serving as an Intelligence Officer since July, 2006. Prior to this, I had been serving as an Inspector in the C.I.S.F. It is true that, publication regarding the appointment as an Intelligence Officer is not made in the Gazette. It is not true that, I have not been given the powers under Sec. 41(2) of the N.D.P.S. Act. I do not know whether the Government has published any notification of my name under Sec. 41(2) of the N.D.P.S. Act. Mr. P.N. Sarvaiya was our Superintendent. Mr. Ayushyamani Tripathi, Zonal Officer, was superior to him. Our office remains open for 24 hours. Generally, it is open from 9-30 O'clock in the morning upto 6-30 O'clock in the evening. I went to my office at 9-00 hrs. in the morning on the day of the incident. It is true that, our officer Mr. Sarvaiya did not give me a written order. Question : Did your Superior Officer Mr. P.N. Sarvaiya give you a written order to search and arrest the accused person during the night hours? Answer : There is no need to pass such a written order." 28. We shall now reproduce some portion of the deposition of the P.W. 4-Hemantkumar Santosh Mukherjee (Exh. 102). Shri Mukherjee is also one of the officers of the N.C.B. In his cross-examination he has deposed as under: "It is true that when information of any cognizable offence is received, such information should be sent to the superior officer in a sealed cover. Such information was sent in a cover to the superior officer in this case, but I do not know as to how it was sent in a cover. It is true that I did not make any inquiry in this regard. Such information was sent in a cover to the superior officer in this case, but I do not know as to how it was sent in a cover. It is true that I did not make any inquiry in this regard. It is true that I did not make any inquiry as to when and at what time the said information was received by the superior officer. It is true that none of us, i.e. I, Sanjay Patel and S.R. Sing, is a Gazetted Officer. It is true that no authorization letter for search and seizure is produced in this case. It is true that after the registration of the offence and even after the production of the accused, none of us, i.e. I, Sanjay Patel or S.R. Sing, submitted any complaint. It is true that none of the from us have submitted or produced the muddamal in the Court." 29. The facts referred to above make it obvious that the proviso to Sec. 42(1) of the N.D.P.S. Act is attracted. We are not impressed by the submission of Mr. Amin that in the present case Sec. 43 of the N.D.P.S. Act would apply and not Sec. 42 of the N.D.P.S. Act. The submission of Mr. Amin cannot be accepted because the contraband was found from a private car. The search of a private Car was undertaken, and according to the case of the department, such search of a private Car led to recovery of the contraband. This is not a case in which search of any public conveyance was undertaken. The search could be said to be at a public place being a highway, but such search was undertaken pursuant to a prior information which was reduced into writing, and as noted above, the search was of a private vehicle. At this stage, it would be worthwhile to quote here Sec. 43 of the N.D.P.S. Act with the explanation. "43. The search could be said to be at a public place being a highway, but such search was undertaken pursuant to a prior information which was reduced into writing, and as noted above, the search was of a private vehicle. At this stage, it would be worthwhile to quote here Sec. 43 of the N.D.P.S. Act with the explanation. "43. Power of seizure and arrest in public place :- Any officer of any of the departments mentioned in Sec. 42 may-- (a) seize in any public place or in transit, any narcotic drag or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drag or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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 VA of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation:- For the purposes of this Section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public." 30. Explanation to Sec. 43 of the N.D.P.S. Act says that for the purposes of this Section, 'public place' includes any public conveyance, hotel, shop or other place which is intended for use by, or accessible to, the public. Thus, in order to be covered by the expression 'public place', the place should be such where public may come as of right. 31. In Sec. 42 as well as Sec. 43 of the N.D.P.S. Act, the word 'conveyance' is there. The difficulty that arises when conveyance is there is that, in what manner it should be interpreted. In our view, in Sec. 43, the word 'conveyance' is qualified by the word 'public'. But, in Sec. 42, it is not qualified by any such word. The difficulty that arises when conveyance is there is that, in what manner it should be interpreted. In our view, in Sec. 43, the word 'conveyance' is qualified by the word 'public'. But, in Sec. 42, it is not qualified by any such word. Thus, it is only the public conveyance which is covered by Sec. 43, but conveyance other than public conveyance will be covered by Sec. 42 of the N.D.P.S. Act. 32. We have carefully read the evidence of the P.W. 2 (Exh. 74) and the P.W. 4 (Exh. 102) who are the main witnesses examined in this case. Their evidence does not disclose that the officers conducting the search have recorded reasons for believing that a search-warrant or authorisation could not be obtained without affording opportunity for concealment of the evidence or facility for the escape of the offender. There is nothing in the evidence of the P.W. 2 and P.W. 4 to indicate that they had addressed themselves to the requirement of the proviso to Sec. 42(1) of the N.D.P.S. Act to record reasons before undertaking the search between sunset and sunrise. No such grounds" have been placed on the record. At this stage, we must address ourselves to one argument of Mr. Amin. Mr. Amin submitted that after the information was received, a very close watch was kept at the Ratanpur Check-Post and the officers were not sure as to at what point of time the Ceilo Car would pass through, and in such circumstances, the officer was not in a position to obtain any search-warrant or authorisation. 33. We are afraid, we are not in a position to accept such submission, because here is a case wherein the officers were expecting the car to pass through at any point of time and that could be between sunrise and sunset or sunset and sunrise. They had ample time. To be precise, they had almost two full days, but still they failed to obtain the search-warrant or authorisation, as mandated under Sec. 42(1) of the N.D.P.S. Act. 34. What will be the legal effect for the non-compliance of the proviso to Sec. 42(1) of the N.D.P.S. Act has been very exhaustively explained by the Supreme Court in one of its recent pronouncement in the case of Jagraj Singh (supra). In Jagraj Singh (supra), the vehicle involved was a Jeep. 34. What will be the legal effect for the non-compliance of the proviso to Sec. 42(1) of the N.D.P.S. Act has been very exhaustively explained by the Supreme Court in one of its recent pronouncement in the case of Jagraj Singh (supra). In Jagraj Singh (supra), the vehicle involved was a Jeep. It was a private Jeep and not a public conveyance. In the said case, the search was carried out between sunset and sunrise. At the same time, there was non-compliance of the proviso to Sec. 42(1) of the Act. The High Court acquitted the accused persons on the ground that Sec. 42 of the N.D.P.S. Act is mandatory and non-compliance of the same would vitiate the conviction. The State of Rajasthan, being dissatisfied with the judgment and order of acquittal passed by the High Court, went to the Supreme Court seeking Special Leave to Appeal. The leave was granted and the appeal was admitted by the Supreme Court. While dismissing the appeal filed by the State of Rajasthan and affirming the judgment and order of acquittal passed by the High Court, the Supreme Court held as under: "7. The learned Counsel appearing for the accused have supported the judgment of the High Court and submits that compliance of provisions of Secs. 42(1) and 42(2) have been held to be mandatory by this Court and due to non compliance of the said provisions, the conviction has rightly been set aside by the High Court. It is submitted that Sec. 43 of the Act is not attracted since the search was conducted after recording information from informer and Station House Officer himself in his statement had stated the facts for proving compliance of Sec. 42, hence, it cannot be said that compliance of Sec. 42 was not required more so the jeep was personal jeep of Vira Ram and High Court has rightly held that there was no material to prove that jeep was a public transport vehicle. No permit from transport authority to ply the vehicle as a public transport vehicle had been filed or even pleaded. 8. We have considered the submissions of learned Counsel for the parties and have perused the record. 9. Whether the High Court committed error in acquitting the accused is the issue which needs to be considered in this appeal. No permit from transport authority to ply the vehicle as a public transport vehicle had been filed or even pleaded. 8. We have considered the submissions of learned Counsel for the parties and have perused the record. 9. Whether the High Court committed error in acquitting the accused is the issue which needs to be considered in this appeal. Whether there were sufficient material to support the findings of the High Court regarding noncompliance of Sec. 42(1) and Sec. 42(2) and whether Sec. 43 was applicable in the present case are the other issues which need to be answered, Whether recovery as claimed by the prosecution is supported from the evidence on record and material and samples were properly sealed are other related issues. 10. The N.D.P.S. Act was enacted to consolidate and amend the law relating to narcotic drugs, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. This Court had occasion to consider the provisions of N.D.P.S. Act in large number of cases. This Court has noted that the object of N.D.P.S. 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 me provisions by the officers, certain safeguards are provided which in the context have to be observed strictly. This Court in State of Punjab v. Balbir Singh, 1994 (3) SCC 299 , in Paragraph 15 has made the following observations: "15. The object of N.D.P.S. 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 Sec. 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." 11. To the similar effect are the observations of this Court in Saiyad Mohd. To that extent they are mandatory. Consequently the failure to comply with these requirements thus affects the prosecution case, and therefore, vitiates the trial." 11. To the similar effect are the observations of this Court in Saiyad Mohd. Saiyad Umar Saiyed v. State of Gujarat, 1995 (3) SCC 610 . The following was stated in Paragraph 6 of the said judgment: "6. It is to be noted that under the N.D.P.S. Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and also to fine which shall not be less than Rupees one lakh, but which may extend to Rupees two lakhs, and the Court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the N.D.P.S. Act shifts the onus of proving his innocence upon the accused; it states that in trials under the N.D.P.S. Act it may be presumed, unless and until the contrary is proved, that an accused has committed an offence under it in respect of the articles covered by it "for the possession of which he fails to account satisfactorily". Having regard to the grave consequences that may entail the possession of illicit articles under the N.D.P.S. Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the Legislature has enacted the safeguard contained in Sec. 50. To obviate any doubt as to the possession by the accused of illicit articles under the N.D.P.S. Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate." 12. In the present case, Sec. 42 is relevant which is extracted as below: "42. To obviate any doubt as to the possession by the accused of illicit articles under the N.D.P.S. Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate." 12. In the present case, Sec. 42 is relevant which is extracted as below: "42. Power of entry, search, seizure and arrest without warrant or authorisation :- (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 paramilitary 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 persons 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 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. (2) Where an officer takes down any information in writing under sub-sec. (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." 13. The High Court has come to the conclusion that there is breach of mandatory provisions of Sec. 42(1) and Sec. 42(2) and further Sec. 43 which was relied by the Special Judge for holding that there was no necessity to comply Sec. 42 is not applicable. We thus proceed to first examine the question as to whether there is breach of provisions of Sec. 42(1) and Sec. 42(2). The breach of Sec. 42 has been found in two parts. The first part is that there is difference between the secret information recorded in Exh. P-14 and Exh. P-21 and the information sent to Circle Officer, Nohar by Exh. P-15. It is useful to refer to the findings of the High Court in the above context, which is quoted below: "From the above examination, it is not found that Exh. P-14 the information which is stated to be received from the informer under Sec. 42(2) of Act or Exh. P-21, the information given by the informer which is stated to be recorded in the Roznamcha, copy whereof has been sent to C.O. Nohar, who was the then Senior Officer, Rather, Exh. P-15, the letter which was sent, it is not the copy of Exh. P-14, but it is the separate memo prepared of their own. From the above examination, it is not found in the present case that Sec. 42(2) of Act, 1985 is complied with." 14. What Sec. 42(2) requires is that where an officer takes down an information in writing under sub-sec. (1) he shall sent a copy thereof to his immediate officer senior. The communication Exh. P-15 which was sent to Circle Officer, Nohar was not as per the information recorded in Exh. P-14 and Exh. P-24. Thus, no error was committed by the High Court in coming to the conclusion that there was breach of Sec. 42(2). 15. Another aspect of non-compliance of Sec. 42(1) proviso, which has been found by the High Court needs to be adverted. Section 42(1) indicates that any authorised officer can carry out search between sun rise and sunset without warrant or authorisation. 15. Another aspect of non-compliance of Sec. 42(1) proviso, which has been found by the High Court needs to be adverted. Section 42(1) indicates that any authorised officer can carry out search between sun rise and sunset without warrant or authorisation. The scheme indicates that in event the search has to be made between sunset and sun rise, the warrant would be necessary unless officer has reasons to believe that a search-warrant or authorisation cannot be obtained without affording the opportunity for escape of offender which grounds of his belief has to be recorded. In the present case, there is no case that any ground for belief as contemplated by proviso to sub-sec. (1) of Sec. 42 or sub-sec. (2) of Sec. 42 was ever recorded by Station House Officer who proceeded to carry on search. Station House Officer has appeared as PD-11 and in his statement also he has not come with any case that as required by the proviso to sub-sec. (1), he recorded his grounds of belief anywhere. The High Court after considering the entire evidence has made following observations: "Shishupal Singh PD-11 by whom search has been conducted, on reaching at the place of occurrence by him no reasons to believe have been recorded before conducting the search of jeep bearing HR-24-4057 under Sec. 42(1), nor any reasons in regard to not obtaining the search-warrant have been recorded. He has also not stated any such facts in his statements that he has conducted any proceedings in regard to compliance of proviso of Sec. 42(1). Since reasons to believe have not been recorded, therefore, under Sec. 42(2) it is not found on record that copy thereof has been sent to the senior officials. Shishupal Singh could be the best witness in this regard, who has not stated any fact in his statement regarding compliance of proviso to Sec. 42(1) and Sec. 42(2), sending of copy of reasons to believe recorded by him to his senior officials." 16. In this context, it is relevant to note that before the Special Judge also the breach of Secs. 42(1) and 42(2) was contended on behalf of the defence. In Paragraph 12 of the judgment Special Judge noted the above arguments of defence. However, the arguments based on non-compliance of Sec. 42(2) were brushed aside by observing that discrepancy in Exh. P-14 and Exh. 42(1) and 42(2) was contended on behalf of the defence. In Paragraph 12 of the judgment Special Judge noted the above arguments of defence. However, the arguments based on non-compliance of Sec. 42(2) were brushed aside by observing that discrepancy in Exh. P-14 and Exh. P-15 is totally due to clerical mistake and there was compliance of Sec. 42(2). Special Judge coming to compliance of proviso to Sec. 42(1) held mat vehicle searched was being used to transport passengers as has been clearly sated by its owner Veera Ram, hence, as per the explanation to Sec. 43 of the Act, the vehicle was a public transport vehicle and there was no need of any warrant or authority to search such a vehicle. The High Court has reversed the above findings of the Special Judge. We thus, proceed to examine as to whether Sec. 43 was attracted in the present case which obviated the requirement of Sec. 42(1) proviso. 17. Section 43 of the Act is as follows: "43. Power of seizure and arrest in public place:- Any officer of any of the departments mentioned in Sec. 42 may-- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act 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; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropic substance or controlled substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation :- For the purposes of this Section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public." 18. Explanation to Sec. 43 defines expression "public place" which includes any public conveyance. Explanation :- For the purposes of this Section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public." 18. Explanation to Sec. 43 defines expression "public place" which includes any public conveyance. The word "public conveyance" as used in the Act has to be understood, as a conveyance which can be used by public in general. The Motor Vehicles Act, 1939, and thereafter, the Motor Vehicles Act, 1988 were enacted to regulate the law relating to motor vehicles. The vehicles which can be used for public are public Motor Vehicles for which necessary permits have to be obtained. Without obtaining a permit in accordance with the Motor Vehicles Act, 1988, no vehicle can be used for transporting passengers. In the present case, it is not the case of the prosecution that the Jeep HR-24-4057 had any permit for transporting the passengers. The High Court has looked into the evidence and come to the conclusion that there was no material to indicate that there was any permit for running the Jeep as public transport vehicle. The High Court has further held that even Kartara Ram who as per owner of the vehicle Veera Ram was using the vehicle, do not support that the Jeep was used as public transport vehicle. The High Court held that personal Jeep could not be treated as public transport vehicle. 19. The following observations were made by the High Court: "Kartara Ram is produced as PD-5, who has deposed the statement that Vira Ram is his brother-in-law (Saala), on whose name jeep bearing No. HR 24 4057 is lying registered. He had employed Inderjit Singh as driver for that Jeep. Person namely Krishan has never been employed as driver. This witness has been declared hostile and he has been examined too, who does not support the prosecution case. In this manner, Viraram is the owner of the Jeep. According to him he had given the Jeep to Kartara Ram, but Kartara Ram has not stated anywhere in is statement that this Jeep was given to him and he used the same as Public Transport Vehicle. Since powder of opium was caught in this Jeep and even Notice Exh. In this manner, Viraram is the owner of the Jeep. According to him he had given the Jeep to Kartara Ram, but Kartara Ram has not stated anywhere in is statement that this Jeep was given to him and he used the same as Public Transport Vehicle. Since powder of opium was caught in this Jeep and even Notice Exh. P-6 was also served upon him by the Police, he with a view to save himself, can also depose such statement that Kartara used to use the Jeep as Public Transport Vehicle, whereas Kartara Ram PD-5 does not affirm this fact. Jeep was personal, it is clear on the record. In this manner, just on this ground that he has given the Jeep to his brother-in-law and he used it to carry the passengers, the personal Jeep could not be treated as public transport vehicle. However, the fact that Jeep is used to carry the passengers has not been affirmed from the statements of Kartara Ram. There is no evidence on record on the basis of which it could be stated that Jeep was public transport vehicle and they have the permit for it, rather it was the private vehicle and it is stated that Vira Ram himself is the owner of that vehicle." 21. There is nothing to impeach the aforesaid findings. We have also perused the statement of Vira Ram in which statement he has never even stated that he has any permit for running the vehicle as transport vehicle. He has stated that "..... I had given this Jeep to Kartara Ram resident of ...... who is my relative to run it for transporting passengers" Admittedly the Jeep was intercepted and was seized by the police. In view of the above, the Jeep cannot be said to be a public conveyance within the meaning of Explanation to Sec. 43. Hence, Sec. 43 was clearly not attracted and provisions of Sec. 42(1) proviso were required to be complied with and the aforesaid statutory mandatory provisions having not been complied with, the High Court did not commit any error in setting aside the conviction. 22. There is one more aspect which needs to be noted. The present is a case where prosecution himself has come with case that secret information was received from informer which information was recorded in Exh. P-14 and Exh. 22. There is one more aspect which needs to be noted. The present is a case where prosecution himself has come with case that secret information was received from informer which information was recorded in Exh. P-14 and Exh. P-21 Roznamcha, and thereafter, the Station House Officer with police party proceeded towards the scene. The present is not a case where the Station House Officer suddenly carried out search at a public place. The Station House Officer in his statement has also come up with the facts and case to prove compliance of Sec. 42. When search is conducted after recording information under Sec. 42(1), the provisions of Sec. 42 has to be complied with. This Court in Directorate of Revenue v. Mohammed Nisar Holia, 2008 (2) SCC 370 , had occasion to consider Secs. 41, 42 and 43 explanation. Following was stated in Paragraph 14: "14. Section 43, on plain reading of the Act, may not attract the rigours of Sec. 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-sec. (1) of Sec. 42, need not be complied with, only because the place whereat search is to be made is a public place. If Sec. 43 is to be treated as an exception to Sec. 42, it is required to be strictly complied with. An interpretation which strikes a balance between the enforcement of law and protection of the valuable human right of an accused must be resorted to. A declaration to the effect that the minimum requirement, namely, compliance of Sec. 165 of the Code of Criminal Procedure would serve the purpose may not suffice as non-compliance of the said provision would not render the search a nullity. A distinction therefore must be borne in mind that a search conducted on the basis of a prior information and a case where the authority comes across a case of commission of an offence under the Act accidentally or per chance............." 23. Thus the present is not a case where Sec. 43 can be said to have been attracted, hence, non-compliance of Sec. 42(1) proviso and Sec. 42(2) had seriously prejudiced the accused. This Court had occasion in large number of cases to consider the consequence of non-compliance of provisions of Secs. Thus the present is not a case where Sec. 43 can be said to have been attracted, hence, non-compliance of Sec. 42(1) proviso and Sec. 42(2) had seriously prejudiced the accused. This Court had occasion in large number of cases to consider the consequence of non-compliance of provisions of Secs. 42(1) and 42(2), whether the entire trial stand vitiated due to above non compliance or conviction can be set aside. In this context reference is made to the judgment of this Court in State of Punjab v. Balbir Singh, 1994 (3) SCC 299 . In the above batch of cases, the High Court has acquitted accused on the ground that search was conducted without conforming to the provisions of the N.D.P.S. Act. Sections 41, 42, 43 and other relevant provisions came for consideration before this Court, referring to the provisions of Chapter IV following was stated in Paragraph 8: "8. But if on a prior information leading to a reasonable belief that an offence under Chapter IV of the Act has been committed, then in such a case, the Magistrate or the officer empowered have to proceed and act under the provisions of Secs. 41 and 42. Under Sec. 42, the empowered officer even without a warrant issued as provided under Sec. 41 will have the power to enter, search, seize and arrest between sunrise and sunset if he has reason to believe from personal knowledge or information given by any other person and taken down in writing that an offence under Chapter IV has been committed or any document or other article which may furnish the evidence of the commission of such offence is kept or concealed in any building or in any place. Under the proviso if such officer has reason to believe that search-warrant or authorisation cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of the offender, he can carry out the arrest or search between sunset and sunrise also after recording the grounds of his belief. Sub-section (2) of Sec. 42 further lays down that when such officer takes down any information in writing or records grounds for this belief under the proviso, he shall forthwith send a copy thereof to his immediate official superior." 24. After referring large number of cases, this Court recorded conclusion in Paragraph 25 which is to the following effect: "25. Sub-section (2) of Sec. 42 further lays down that when such officer takes down any information in writing or records grounds for this belief under the proviso, he shall forthwith send a copy thereof to his immediate official superior." 24. After referring large number of cases, this Court recorded conclusion in Paragraph 25 which is to the following effect: "25. The question considered above arise frequently before the trial Courts. Therefore we find it necessary to set out our conclusions which are as follows: (1) If a Police Officer without any prior information as contemplated under the provisions of the N.D.P.S. Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr.P.C. and when such search is completed at that stage Sec. 50of the N.D.P.S. Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the Police Officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the N.D.P.S. Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the N.D.P.S. Act. (2-A) Under Sec. 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc., when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Secs. 41(2) and 42(1) can act under the provisions of the N.D.P.S. Act. If such arrest or search is made under the provisions of the N.D.P.S. Act by anyone other than such officers, the same would be illegal. (2-B) Under Sec. 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If such arrest or search is made under the provisions of the N.D.P.S. Act by anyone other than such officers, the same would be illegal. (2-B) Under Sec. 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction. (2-C) Under Sec. 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Sec. 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial. (3) Under Sec. 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Sec. 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. (4-A) If a Police Officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr.P.C. fails to strictly comply with the provisions 'of Secs. 100 and 165 Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity. (4-B) If an empowered officer or an authorised officer under Sec. 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr.P.C. namely Secs. 100 and 165 Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity. (4-B) If an empowered officer or an authorised officer under Sec. 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr.P.C. namely Secs. 100 and 165 Cr.P.C. and if there is no strict compliance with the provisions of Cr.P.C. then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the Courts while appreciating the evidence in the facts and circumstances of each case. (5) On prior information the empowered officer or authorised officer while acting under Secs. 41(2) or 42 should comply with the provisions of Sec. 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. 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 Sec. 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (6) The provisions of Secs. 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Secs. 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case." 25. A three-Judges Bench in Saiyad Mohd. Saiyad Umar Saiyed v. State of Gujarat (supra) after elaborate consideration of provisions of the N.D.P.S. Act including Sec. 50 had endorsed the judgment of this Court in Balbir Singh's case (supra). 26. A three-Judges Bench in Saiyad Mohd. Saiyad Umar Saiyed v. State of Gujarat (supra) after elaborate consideration of provisions of the N.D.P.S. Act including Sec. 50 had endorsed the judgment of this Court in Balbir Singh's case (supra). 26. A Constitution Bench of this Court in State of Punjab v. Baldev Singh, 1999 (6) SCC 172 , had occasion to consider the provisions of the N.D.P.S. Act and several earlier judgments of this Court. The Constitution Bench noticed that the earlier judgments in Balbir Singh's case has found approval by three-Judges Bench in Saiyad Mohd. Saiyad Umar Saiyed v. State of Gujarat (supra) and a discordant note was struck by two-Judges Bench in State of Himachal Pradesh v. Pirthi Chand, 1996 (2) SCC 37 . The Constitution Bench approved the view of this Court in Balbir Singh's case that there is an obligation on authorised officer under Sec. 50 to inform the suspect that he has right to be informed in the presence of the Gazetted Officer. It was held by Constitution Bench that if search is conducted in violation of Sec. 50 it may not vitiate the trial but that would render the recovery of illicit articles suspect and vitiates the conviction and sentence of the accused. What is said about non-compliance of Sec. 50 is also true with regard to non-compliance of Sec. 42 of the Act. 27. In Beckodan Abdul Rahiman v. State of Kerala, 2002 (4) SCC 229 , this Court had occasion to consider both Sec. 42 and Sec. 50. In the above case there was non compliance of Sec. 42(2) as well as Sec. 50. It was also noticed that a Constitution Bench in State of Punjab v. Baldev Singh (supra) has already laid down that provisions of Secs. 42 and 50 are mandatory and their non-compliance would render the investigation illegal. Following was held in Paragraphs 5 and 6: "5. In this case the violation of the mandatory provisions is writ large as is evident from the statement of K.R. Premchandran (P.W. 1). After recording the information, the witnesses is not shown to have complied with the mandate of sub-sec. (2) of Sec. 42 of the Act. Similarly the provisions of Sec. 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in presence of a Gazetted Officer or Magistrate. After recording the information, the witnesses is not shown to have complied with the mandate of sub-sec. (2) of Sec. 42 of the Act. Similarly the provisions of Sec. 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in presence of a Gazetted Officer or Magistrate. 6. We are of the firm opinion that the provisions of sub-sec. (2) of Sec. 42 and the mandate of Sec. 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted...." 28. It is also relevant to note another Constitution Bench judgment of this Court in Karnail Singh v. State of Haryana, 2009 (8) SCC 539 , where this Court had again occasion to consider the provisions of Secs. 42 and 50. The Constitution Bench noted the divergence of opinion in two earlier cases which has resulted in placing the matter before the larger Bench. The question was noticed in Paragraphs 1 and 2 of the judgment which are to the following effect: "(1) In the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 (2) SCC 513 , a three-Judge Bench of this Court held that compliance of Sec. 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "N.D.P.S. Act") is mandatory and failure to take down the information in writing and forthwith send a report to his immediate official superior would cause prejudice to the accused. In the case of Sajan Abraham v. State of Kerala, 2001 (6) SCC 692 , which was also decided by a three-Judge Bench, it was held that Sec. 42 was not mandatory and substantial compliance was sufficient. (2) In view of the conflicting opinions regarding the scope and applicability of Sec. 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue. (2) In view of the conflicting opinions regarding the scope and applicability of Sec. 42 of the Act in the matter of conducting search, seizure and arrest without warrant or authorization, these appeals were placed before the Constitution Bench to resolve the issue. (3) The statement of objects and reasons of the N.D.P.S. Act makes it clear that to make the scheme of penalties sufficiently deterrent to meet the challenge of well organized gangs of smugglers, and to provide the officers of a number of important Central enforcement agencies like Narcotics, Customs, Central Excise, etc. with the power of investigation of offences with regard to new drugs of addiction which have come to be known as psychotropic substances posing serious problems to national Governments, this comprehensive law was enacted by Parliament enabling exercise of control over." 29. After referring to the earlier judgments, the Constitution Bench came to the conclusion that non-compliance of requirement of Secs. 42 and 50 is impermissible whereas delayed compliance with satisfactory explanation will be acceptable compliance of Sec. 42. The Constitution Bench noted the effect of the aforesaid two decisions in Paragraph 5. The present is not a case where insofar as compliance of Sec. 42(1) proviso even an arguments based on substantial compliance is raised there is total non-compliance of Sec. 42(1) proviso. As observed above, Sec. 43 being not attracted search was to be conducted after complying the provisions of Sec. 42. We thus, conclude that the High Court has rightly held that non compliance of Sec. 42(1) and Sec. 42(2) were proved on the record and the High Court has not committed any error in setting aside the conviction order." 35. Thus, the decision of the Supreme Court in Jagraj Singh (supra) clinches the issue. There is no scope for this Court to take any other view so far as the issue of non-compliance of the proviso to Sec. 42(1) of the N.D.P.S. Act is concerned. 36. At this stage, we should consider the argument of Mr. H.K. Patel, the learned A.P.P. appearing for the State. Mr. Patel submitted that the facts of this case would indicate that there is partial compliance of Sec. 42 of the Act, and therefore, the conviction of the accused persons would not get vitiated. Mr. Patel submitted that Sec. 57 of the Act provides for a report of arrest and seizure. Section 57 reads thus: "57. Mr. Patel submitted that the facts of this case would indicate that there is partial compliance of Sec. 42 of the Act, and therefore, the conviction of the accused persons would not get vitiated. Mr. Patel submitted that Sec. 57 of the Act provides for a report of arrest and seizure. Section 57 reads thus: "57. Report of arrest and seizure:- Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior." 37. Mr. Patel invited our attention to Exh. 107. Exh. 107 is a report of the Intelligence Officer to his superior under Sec. 57 of the N.D.P.S. Act. The report reads thus: "To, The Superintendent Narcotics Control Bureau Ahmedabad Zonal Unit, Ahmedabad. Sub : Report under Sec. 57 of the N.D.P.S. Act, 1985 - Regarding: Sir, A specific intelligence was received on 27-2-2009 that a person viz. Yusuf Ismail Vohra @ Yusuf S.T.D. wala of Ahmedabad is most likely to enter in Gujarat along with one Farooq through Ratanpur Check-Post on Rajasthan-Gujarat border within a day or two, with consignment of 20 kgs. of Charas in his blue coloured Cielo Car No. GJ-01-PP-5973. Based on information, surveillance was mounted at Ratanpur Police Check-Post and the Cielo Car No. GJ-01-PP5973 was stopped at about 1-30 hrs. on 1-3-2009. Yusuf Ismail Vohra and Farooq were found seated in the said car and on questioning, Yusuf admitted to have 20 kgs. of Charas containing in 11 packets concealed in the cavities made behind front and rear vehicle number plate and in L.P.G. gas kit installed in the dicky of the said vehicle. Total 20.746 kgs. (Gross) and 19.992 kgs. (Net) of Charas was recovered from the possession of Yusuf Ismail Vohra and Farooq. A summons was issued to the accused namely Shri Farooq Gani Bhai Vohra under Sec. 67 of N.D.P.S. Act, 1985 and his statement was recorded there under on 1-3-2009. In his statement, the accused has admitted his involvement in the conspiracy to procure, possess and transport inter state Charas, a Narcotic drug. Accordingly, Farooq Gani Bhai Vohra, Indian National, Age : 32 years resident of Kaji Ka Makan, Behind Thasra Bus Stand, Dakor, Dist. Nadiad was placed under arrest on 1-3-2009 at 14-40 hrs. In his statement, the accused has admitted his involvement in the conspiracy to procure, possess and transport inter state Charas, a Narcotic drug. Accordingly, Farooq Gani Bhai Vohra, Indian National, Age : 32 years resident of Kaji Ka Makan, Behind Thasra Bus Stand, Dakor, Dist. Nadiad was placed under arrest on 1-3-2009 at 14-40 hrs. for his involvement in the case of seizure of 20.746 kgs. (Gross) of Charas, a Narcotic Drug. He was communicated the grounds of his arrest by serving him the copy of Arrest Memo dated 1-3-2009. Thereafter, he was produced before the Hon'ble Addl. Sessions Judge well within the stipulated period of time and the Hon'ble Court was pleased to send him to the Judicial Custody. Submitted for favour of information in terms of Sec. 57 of the N.D.P.S. Act, 1985. Date : 2-3-2009 Place : Ahmedabad (H.K. Mukherjee Intelligence Officer N.C.B., Ahmedabad.” 38. According to Mr. Patel, once there is a report under Sec. 57 of the N.D.P.S. Act to a superior officer, then the test of prejudice would come into play. The accused has to point out in what manner he is prejudiced by not complying Sec. 42 of the N.D.P.S. Act in toto. We are afraid, we are not in a position to accept such submission in view of the decision of the Supreme Court in the case of Kishan Chand v. State of Haryana, AIR 2013 SC 357 . In Kishan Chand (supra), the Supreme Court has taken the view that sending of report as required under Sec. 57 of the N.D.P.S. Act will not be compliance, factually and/or in the eyes of law to the provisions of Sec. 42 of the N.D.P.S. Act. These are separate rights and protections available to an accused and their compliance has to be done in accordance with the provisions of Secs. 42, 50 and 57 of the N.D.P.S. Act. The Supreme Court has observed that they are neither interlinked nor interdependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages. We quote the following observations as under: "19. The provisions like Secs. 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. In fact, they operate in different fields and at different stages. We quote the following observations as under: "19. The provisions like Secs. 42 or 50 of the Act are the provisions which require exact and definite compliance as opposed to the principle of substantial compliance. The Constitution Bench in the case of Karnail Singh, 2009 AIR SCW 5265 (supra) carved out an exception which is not founded on substantial compliance but is based upon delayed compliance duly explained by definite and reliable grounds. 20. While dealing with the requirement of complying with the provisions of Sec. 50 of the Act and keeping in mind its mandatory nature, a Bench of this Court held that there is need for exact compliance without any attribute to the element of prejudice, where there is an admitted or apparent noncompliance. The Court in the case of State of Delhi v. Ram Avtar @ Rama, [ 2011 (12) SCC 207 : AIR 2011 SC 2699 : 2011 AIR SCW 4316], held as under:- "26. The High Court while relying upon the judgment of this Court in Baldev Singh, [ AIR 1999 SC 2378 : 1999 AIR SCW 2494], and rejecting the theory of substantial compliance, which had been suggested in Joseph Fernandez, [ AIR 2000 SC 3502 : 2000 AIR SCW 2431], found that the intimation did not satisfy the provisions of Sec. 50 of the Act. The Court reasoned that the expression "duly" used in Sec. 50 of the Act connotes not "substantial" but "exact and definite compliance". Vide Exh. P.W. 6/A, the appellant was informed that a Gazetted Officer or a Magistrate could be arranged for taking his search, if he so required. This intimation could not be treated as communicating to the appellant that he had a right under law, to be searched before the said authorities. As the recovery itself was illegal, the conviction and sentence has to be set aside. 27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance therewith should be strictly construed. As already held by the Constitution Bench in Vijaysinh Chandubha Jadeja, [ AIR 2011 SC 77 : 2010 AIR SCW 6800], the theory of "substantial compliance" would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudice against the suspect. As already held by the Constitution Bench in Vijaysinh Chandubha Jadeja, [ AIR 2011 SC 77 : 2010 AIR SCW 6800], the theory of "substantial compliance" would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudice against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance therewith must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Sec. 50 of the Act. While discharging the onus of Sec. 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Sec. 50 of the Act. Non-compliance with the provisions of Sec. 50 of the Act would cause prejudice to the accused, and therefore, amount to the denial of a fair trial." 21. When there is total and definite non-compliance of such statutory provisions, the question of prejudice loses its significance. It will per se amount to prejudice. These are indefeasible, protective rights vested in a suspect and are incapable of being shadowed on the strength of substantial compliance. 22. The purpose of these provisions is to provide due protection to a suspect against false implication and ensure that these provisions are strictly complied with to further the legislative mandate of fair investigation and trial. It will be opposed to the very essence of criminal jurisprudence, if upon apparent and admitted non-compliance of these provisions in their entirety, the Court has to examine the element of prejudice. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevancy. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non-compliance of the provision. 23. The element of prejudice is of some significance where provisions are directory or are of the nature admitting substantial compliance. Where the duty is absolute, the element of prejudice would be of least relevancy. Absolute duty coupled with strict compliance would rule out the element of prejudice where there is total non-compliance of the provision. 23. Reverting to the facts of the present case, we have already noticed that both the trial Court and the High Court have proceeded on the basis of substantial compliance and there being no prejudice to the accused, though clearly recording that it was an admitted case of total non-compliance. The statement of P.W. 7 puts the matter beyond ambiguity that there was 'total non-compliance of the statutory provisions of Sec. 42 of the Act'. Once, there is total non-compliance and these provisions being mandatory in nature, the prosecution case must fail. 24. Reliance placed by the learned Counsel appearing for the State on the case of Sajan Abraham, [ AIR 2001 SC 3190 : 2001 AIR SCW 2970] is entirely misplaced, firstly in view of the Constitution Bench judgment of this Court in the case of Karnail Singh, [2009 AIR SCW 5265]; Secondly, in that case the Court was also dealing with the application of the provisions of Sec. 57 of the Act which are worded differently and have different requirements, as opposed to Secs. 42 and 50 of the Act. It is not a case where any reason has come in evidence as to why the secret information was not reduced to writing and sent to the higher officer, which is the requirement to be adhered to 'pre-search'. The question of sending it immediately thereafter does not arise in the present case, as it is an admitted position that there is total non-compliance of Sec. 42 of the Act. The sending of report as required under Sec. 57 of the Act on 20th July, 2000 will be no compliance, factually and/or in the eyes of law to the provisions of Sec. 42 of the Act. These are separate rights and protections available to an accused and their compliance has to be done in accordance with the provisions of Secs. 42, 50 and 57 of the Act. They are neither interlinked nor interdependent so as to dispense compliance of one with the compliance of another. These are separate rights and protections available to an accused and their compliance has to be done in accordance with the provisions of Secs. 42, 50 and 57 of the Act. They are neither interlinked nor interdependent so as to dispense compliance of one with the compliance of another. In fact, they operate in different fields and at different stages. That distinction has to be kept in mind by the Courts while deciding such cases." 39. In view of the aforesaid discussion, the trial must be held to have been vitiated in view of the contravention of the proviso to Sec. 42(1) of the N.D.P.S. Act. 40. In fact, the provisions contained in Chapter IV of the N.D.P.S. Act are a group of Sections providing for certain checks on exercise of the powers of the authority concerned which, otherwise, would have been arbitrarily or indiscriminately exercised. The statute mandates that the prosecution must prove compliance with the said provisions. If no evidence is led by the prosecution, the Court will be entitled to draw the presumption that the procedure had not been complied with. 41. In the case of the State of Punjab v. Baldev Singh, 1999 (6) SCC 172 , a Constitution Bench of the Supreme Court observed in Paragraphs 9 and 10 as under: "Sub-section (1) of Sec. 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief. The proviso to sub-sec. (1) lays down that if the empowered 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. Vide sub-sec. (2) of Sec. 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-sec. Vide sub-sec. (2) of Sec. 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-sec. (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Sec. 43 and Sec. 42 is that whereas Sec. 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure. Section 43 does not contain any such provision and as such while acting under Sec. 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful." 42. Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. The Supreme Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to a Court of law and the accused while defending his prosecution. The Supreme Court also held that failure to comply with Sec. 42(1), proviso to Sec. 42(1) and Sec. 42(2) would render the entire prosecution case suspect and cause prejudice to the accused. 43. In the cases of Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 (2) SCC 513 : [ 2000 (2) GLR 1129 (SC)]; Koluttumottil Razak v. State of Kerala, 2000 (4) SCC 465 ; Beckodan Abdul Rahman v. State of Kerala, 2002 (4) SCC 229 and in the case of Chhunna @ Mehtab v. State of M.P., 2002 (9) SCC 363 , the Supreme Court has held that the non-compliance of the provisions of the proviso to Sec. 42 of the N.D.P.S. Act, which is mandatory, the action was held illegal and the conviction of the accused was set aside. The Supreme Court also held that the onus to prove compliance lies on the prosecution and in the absence of any prosecution evidence about the compliance with the mandatory procedure, the presumption would be that the procedure was not complied with. 44. In the case of Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, 1995 (3) SCC 610 : [ 1995 (2) GLR 1315 (SC)], the Supreme Court held that the prosecution is obliged to give evidence of the search and all that transpired in its connection. It is very relevant that the prosecution witnesses speak about the compliance about the mandatory procedure and if under the evidence to this effect is not given, the Court must assume that the person to be searched was not informed of the protection. The Court must find that the possession of illicit articles under the Act was not established. It has been held that when the officer has not deposed that he had followed the procedure mandated the Court is duty-bound to conclude that the accused had not had the benefit of the protection that the Act affords; that therefore, his possession of articles under the Act is not established and that the precondition for his having satisfactorily accounted for such possession had not been met; and to acquit the accused. 45. A very specific question was put to the P.W. 2 in his cross-examination by the defence Counsel that as the search was carried out between sunset and sunrise, whether he had obtained any search-warrant or authorisation from Shri P.N. Sarvaiya, i.e. his superior. The reply of the P.W. 2 depicts total ignorance of law. He replied that there was no need to obtain any such search-warrant or authorisation in writing. 46. In Chhunna @ Mehtab v. State of M.P., 2002 (9) SCC 363 , a three-Judge Bench of the Supreme Court, in a very short order, has observed as under: "1. The case of the prosecution was that at 3-00 a.m. a police party saw opium being prepared inside a room and they entered the premises and apprehended the accused who was stated to be making opium and mixing it with chocolate. 2. The case of the prosecution was that at 3-00 a.m. a police party saw opium being prepared inside a room and they entered the premises and apprehended the accused who was stated to be making opium and mixing it with chocolate. 2. It is not in dispute that the entry in search of the premises in question took place between sunset and sunrise at 3-00 a.m. This being the position, the proviso to Sec. 42 of the Narcotic Drugs and Psychotropic Substances Act was applicable and it is admitted that before the entry for effecting search of the building neither any search-warrant or authorisation was obtained nor were the grounds for possible plea that if opportunity for obtaining search-warrant or authorisation is accorded the evidence will escape indicated. In other words, there has been a non-compliance with the provisions of the proviso to Sec. 42 and therefore, the trial stood vitiated." 47. We also noticed that the alleged narcotic powder seized from the possession of the accused persons was never produced before the trial Court as a material exhibit and there is no explanation for its non-production. In the oral evidence of the P.W. 4-Hemantkumar Santosh Mukherjee (Exh. 102), there is a clear admission that the muddamal seized from the possession of the accused persons was not submitted or produced in the Court. We have referred to this part of the evidence of the P.W. 4 in Paragraph 28 of our judgment. 48. It may be noted here that in Jitendra v. State of M.P., AIR 2003 SC 4236 , on similar facts the Supreme Court held that the material placed on record by the prosecution did not bring home the charge against the accused beyond reasonable doubt and it would be unsafe to maintain their conviction on that basis. In Jitendra (supra), the Supreme Court observed and held as under: "The evidence to prove that charas and ganja were recovered from the possession of the accused consisted of the evidence of the Police Officers and the panch-witnesses. The panch-witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (P.W. 7), Angad Singh (P.W. 8) and Sub-Inspector D.J. Rai (P.W. 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The panch-witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (P.W. 7), Angad Singh (P.W. 8) and Sub-Inspector D.J. Rai (P.W. 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial Court, so as to connect them with the samples sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from the interested testimony of the Police Officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the drugs seized from the possession of the accused. Although the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the Court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the Chemical Examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, "non-production of these commodities before the Court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced". The High Court relied on Sec. 465, Cr.P.C. to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused. 6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the N.D.P.S. Act. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the N.D.P.S. Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the Police Officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the Investigating Officer was also not examined. Against this background, to say that, despite the panch-witnesses having turned hostile, the non-examination of the Investigating Officer and non-production of the seized drugs, the conviction under the N.D.P.S. Act can still be sustained, is farfetched." 49. The decision in Jitendra (supra) applies to the facts of this case with full force. 50. A lot was argued as regards the non-compliance of the standing orders which are in the nature of the administrative instructions. As such, we may not go into this issue because we are convinced that the accused persons are entitled to acquittal for non-compliance of the mandatory provisions of Sec. 42 of the N.D.P.S. Act. However, we may say something in this regard for the benefit of the trial Courts. 51. In this context, we may refer to a decision of the Supreme Court in the case of Khet Singh v. Union of India, reported in 2002 (4) SCC 380 . We may quote the observations made in Paragraphs 10 to 17 thus: "10. The instructions issued by the Narcotics Control Bureau, New Delhi are to be followed by the officer-in-charge of the investigation of the crimes coming within the purview of the N.D.P.S. Act, even though these instructions do not have the force of law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. They are intended to guide the officers and to see that a fair procedure is adopted by the officer-in-charge of the investigation. It is true that when a contraband article is seized during investigation or search, a seizure mahazar should be prepared at the spot in accordance with law. There may, however, be circumstances in which it would not have been possible for the officer to prepare the mahazar at the spot, as it may be a chance recovery and the officer may not have the facility to prepare a seizure mahazar at the spot itself. If the seizure is effected at the place where there are no witnesses and there is no facility for weighing the contraband article or other requisite facilities are lacking, the officer can prepare the seizure mahazar at a later stage as and when the facilities are available, provided there are justifiable and reasonable grounds to do so. In that event, where the seizure mahazar is prepared at a later stage, the officer should indicate his reasons as to why he had not prepared the mahazar at the spot of recovery. If there is any inordinate delay in preparing the seizure mahazar, that may give an opportunity to tamper with the contraband article allegedly seized from the accused. There may also be allegations that the article seized was by itself substituted and some other items were planted to falsely implicate the accused. To avoid these suspicious circumstances and to have a fair procedure in respect of search and seizure, it is always desirable to prepare the seizure mahazar at the spot itself from where the contraband articles were taken into custody. 11. In the present case, though the article was seized from the accused while he was travelling in a truck, no seizure mahazar was prepared at that time. The accused persons were taken to the office of customs and the seizure mahazar was prepared at the office of customs. The learned single Judge of the High Court held that no prejudice was caused to the appellant. The accused persons were taken to the office of customs and the seizure mahazar was prepared at the office of customs. The learned single Judge of the High Court held that no prejudice was caused to the appellant. The learned Counsel for the appellant contended that N.D.P.S. Act being a special Statute with provision for severe punishment on the accused found guilty of the offences punishable thereunder, the procedure established by law for search and seizure is to be strictly complied with and any failure to comply with such procedure is to be viewed seriously and any evidence collected shall be made inadmissible under law. 12. Whether evidence collected by illegal search or seizure is admissible or not was considered by this Court in series of decisions and one of the earliest decisions is the decision of the Constitution Bench in Pooran Mal v. Director of Inspection (Investigation), New Delhi, 1974 (1) SCC 345 . Though the search in that case was done under the provisions of the Income-Tax Act, it is apposite to note the following observation made by this Court: "So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure." 13. In State of Punjab v. Baldev Singh, 1999 (6) SCC 172 , the Constitution Bench of this Court extensively considered the question whether the procedure laid down under Sec. 50 of the N.D.P.S. Act is mandatory or not. It was held that the judgment in Pooran Mal case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Sec. 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illicit search. In Paragraph 45 of the judgment, Dr. A.S. Anand (Chief Justice) held as under: ".....Prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. In Paragraph 45 of the judgment, Dr. A.S. Anand (Chief Justice) held as under: ".....Prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned. While considering the aspect of fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot allow admission of evidence against an accused, where the Court is satisfied that the evidence had been obtained by a conduct of which the prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused. If after careful consideration of the material on record it is found by the Court that the admission of evidence collected in search conducted in violation of Sec. 50 would render the trial unfair then that evidence must be excluded....." 14. In State of H.P. v. Prithi Chand, 1996 (2) SCC 37 , it was held that it would thus be settled law that every deviation from the details of the procedure prescribed for search does not necessarily lead to the conclusion that search by the police renders the recovery of the articles pursuant to the illegal search irrelevant evidence nor the discovery of the fact inadmissible at the trial. Weight to be attached to such evidence depends on facts and circumstances in each case. The Court is required to scan the evidence with care and to act upon it when it is proved and the Court would hold that the evidence would be relied upon. 15. In Radha Kishan v. State of Uttar Pradesh, AIR 1963 SC 822 , this Court held that the evidence obtained by illegal search and seizure would not be rejected but requires to be examined carefully. In State of Maharashtra v. Natwarlal Damodardas Soni, 1980 (4) SCC 669 , it was held that even if the search was illegal, it will not affect the validity of the seizure and further investigation of the authorities or the validity of the trial which followed on the complaint by the customs officials. 16. In State of Maharashtra v. Natwarlal Damodardas Soni, 1980 (4) SCC 669 , it was held that even if the search was illegal, it will not affect the validity of the seizure and further investigation of the authorities or the validity of the trial which followed on the complaint by the customs officials. 16. Law on the point is very clear that even if there is any sort of procedural illegality in conducting the search and seizure, the evidence collected thereby will not become inadmissible and the Court would consider all the circumstances and find out whether any serious prejudice had been caused to the accused. If the search and seizure was in complete defiance of the law and procedure and there was any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure, then, it could be said that the evidence is not liable to be admissible in evidence. 17. In the present case, though the mahazar was not prepared at the spot where the accused persons were found to be in possession of the contraband article but the same was done only at the Office of the Customs Department while the accused persons were very much present throughout, there was no allegation or suggestion that the contraband article was, in any way, meddled with by the officers. Therefore, we are of the view that the appellant has rightly been found to be in possession of the opium. We find no reason to interfere with the conviction and sentence entered against the appellant. The appeal is dismissed accordingly." 52. In what manner the accused persons could be said to have been gravely prejudiced on account of the entire procedure like drawing of the panchnama, etc. at the Shamlaji Circuit House is concerned, has not been pointed out. The argument proceeds on the footing that the possibility of tampering, interpolation etc. could not be ruled out. However, in the absence of any evidence in this regard, it would be too much to say that the procedural illegality as alleged is sufficient to vitiate the trial, and thereby, render the order of conviction illegal. 53. We shall now deal with the arguments as regards the conscious possession of the goods. Section 35 of the Act provides for a presumption of culpable mental state. Section 35 reads thus: "35. 53. We shall now deal with the arguments as regards the conscious possession of the goods. Section 35 of the Act provides for a presumption of culpable mental state. Section 35 reads thus: "35. Presumption of culpable mental state:- (1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation:- In this Section 'culpable mental state' includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this Section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability." 54. Whether, there was 'conscious possession', has to be determined with reference to the factual background. In the case on hand, the clandestine manner in which the contraband was concealed in the Car itself is sufficient to presume the culpable mental state. As noted above, there were three cavities in the Car; one cavity in the front part beneath the number-plate and two cavities in the rear part of the Car. In all, eleven packets were clandestinely stored in those cavities. 55. So far as the appellant of the Criminal Appeal No. 638 of 2015 is concerned, i.e. Yusufbhai Ismailbhai Vohra, is concerned, he appears to be habitually dealing in narcotics. He was already convicted for the offence under the N.D.P.S. Act and was undergoing sentence of ten years. While he was on parole, he jumped the parole and committed the second offence. The consignment is alleged to have been brought all the way from Kashmir. We find it difficult to appreciate the argument of Ms. Bajpai that her client being just a driver had no knowledge about any narcotics concealed inside the car. Section 20(b) makes the possession of the contraband articles an offence. Section 20 appears in Chapter IV of the Act, which relates to the offences for possession of such articles. It is no doubt true that in order to make the possession illicit, there must be a conscious possession. The submission of Ms. Section 20(b) makes the possession of the contraband articles an offence. Section 20 appears in Chapter IV of the Act, which relates to the offences for possession of such articles. It is no doubt true that in order to make the possession illicit, there must be a conscious possession. The submission of Ms. Bajpai is that, unless the possession was coupled with the requisite mental element, that is, conscious possession and not mere custody without awareness of the nature of such possession, Sec. 20 would not be attracted. As observed by the Supreme Court in the case of Madan Lal v. State of H.P., reported in 2003 (7) SCC 465, the expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible to workout a completely logical and precise definition of 'possession' uniformly applicable to all situations in the context of all the statutes. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. 56. As noted by the Supreme Court in the case of Gunwantlal v. State of M.P., reported in 1972 (2) SCC 194 , that possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control. 57. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the N.D.P.S. Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Sec. 54 where also the presumption is available to be drawn from the possession of illicit articles. 58. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants, more particularly, the driver of the vehicle who has raised this issue that the possession was not conscious in the logical background of Secs. 35 and 54 of the N.D.P.S. Act. 58. In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-appellants, more particularly, the driver of the vehicle who has raised this issue that the possession was not conscious in the logical background of Secs. 35 and 54 of the N.D.P.S. Act. In fact, the evidence clearly establishes that they knew about the transportation of 'charas' and each had a role in the transportation and possession with conscious knowledge of what they were doing. Just because one of the appellants was the driver of the vehicle would not make any difference. He would not stand on a different footing. Therefore, the presumption available by application of the logic flowing from Secs. 35 and 54 of the N.D.P.S. Act clearly applies to the facts of the present case. 59. In the aforesaid context of conscious possession, we may refer to and rely upon the decision of the Supreme Court in the case of Baldev Singh v. State of Haryana, reported in 2015 (17) SCC 554, we quote the following observations thus: "Explanation to sub-sec. (1) of Sec. 35 expanding the meaning of 'culpable mental state' provides that 'culpable mental state' includes intention, knowledge of a fact and believing or reason to believe a fact. Sub-section (2) of Sec. 35 provides that for the purpose of Sec. 35, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of the probability. Once the possession of the contraband by the accused has been established, it is for the accused to discharge the onus of proof that he was not in conscious possession. Burden of proof cast on the accused under Sec. 35 of the N.D.P.S. Act can be discharged through different modes. One of such modes is that the accused can rely on the materials available in the prosecution case raising doubts about the prosecution case. The accused may also adduce other evidence when he is called upon to enter on his defence. One of such modes is that the accused can rely on the materials available in the prosecution case raising doubts about the prosecution case. The accused may also adduce other evidence when he is called upon to enter on his defence. If the circumstances appearing in the prosecution case give reasonable assurance to the Court that the accused could not have had the knowledge of the required intention, the burden cast on him under Sec. 35 of the N.D.P.S. Act would stand discharged even if the accused had not adduced any other evidence of his own when he is called upon to enter on his defence." 60. In the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat, AIR 2000 SC 821 , the Supreme Court has clearly held that where an accused admits that narcotic drugs were recovered from bags that were found in his possession at the time of his apprehension, in terms of Sec. 35 of the N.D.P.S. Act, the burden of proof is then upon him to prove that he had no knowledge that the bags contained such a substance. The Supreme Court then went further on to explain as to the standard of proof that such an accused is expected to discharge and the modes vide which he can discharge the said burden. In Paragraphs 21 and 22 of the said judgment, the Supreme Court held as under: "21. No doubt, when the appellant admitted that the narcotic drug was recovered from the gunny bags stacked in the autorickshaw, the burden of proof is on him to prove that he had no knowledge about the fact that those gunny bags contained such a substance. The standard of such proof is delineated in sub-sec. (2) as "beyond a reasonable doubt". If the Court, on an appraisal of the entire evidence does not entertain doubt of a reasonable degree that he had real knowledge of the nature of the substance concealed in the gunny bags then the appellant is not entitled to acquittal. However, if the Court entertains strong doubt regarding the accused's awareness about the nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence keeping such strong doubt undispelled. Even so, it is for the accused to dispel any doubt in that regard. 22. However, if the Court entertains strong doubt regarding the accused's awareness about the nature of the substance in the gunny bags, it would be a miscarriage of criminal justice to convict him of the offence keeping such strong doubt undispelled. Even so, it is for the accused to dispel any doubt in that regard. 22. The burden of proof cast on the accused under Sec. 35 can be discharged through different modes. One is that he can rely on the materials available in the prosecution evidence. Next is, in addition to that, he can elicit answers from prosecution witnesses through cross-examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in the prosecution case or in the prosecution evidence are such as to give reasonable assurance to the Court that the appellant could not have had the knowledge or the required intention, the burden cast on him under Sec. 35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence." 61. We shall now deal with the contention as regards the evidentiary value of the confessional statements of the accused appellants recorded under Sec. 67 of the N.D.P.S. Act. Section 67 of the N.D.P.S. Act reads thus: "67. Power to call for information, etc.:- Any officer referred to in Sec. 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act, (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case." 62. The two statements recorded under Sec. 67 of the Act are on record. The statements of the driver is at Exh. 103, whereas the statement of the co-accused is at Exh. 77. We have gone through both the statements. The two statements contain minutest of the details. The two statements recorded under Sec. 67 of the Act are on record. The statements of the driver is at Exh. 103, whereas the statement of the co-accused is at Exh. 77. We have gone through both the statements. The two statements contain minutest of the details. The only question that needs to be considered is the evidentiary value of such statements and whether the two statements could be termed as voluntary statements. 63. We take notice of the fact that both the statements came to be retracted for the first time in the Sec. 313 statement recorded by the trial Court. If it is the case of the appellants that their statements were not voluntary and were obtained under threats, pressure, duress or coercion, then they should have retracted the same at the first available opportunity. Having not done so and raising a dispute in this regard for the first time in their statement recorded under Sec. 313 of the Code of Criminal Procedure, it would be too much to say that such statements were not voluntary. 64. In the aforesaid context, we may refer to and rely upon the decision of the Supreme Court in the case of Ram Singh v. Central Bureau of Narcotics, reported in 2011 (11) SCC 347 . We quote the observations made in Paragraphs 18, 19 and 20 in the aforesaid judgment thus: "18. In our opinion, when an accused is made aware of the confession made by him and he does not make complaint within a reasonable time, same shall be a relevant factor to adjudge as to whether the confession was voluntary or not. Here in the present case appellant was produced before the Court on several dates and at no stage he made any complaint before the Special Judge of any torture or harassment in recording the confession. It is only when his statement was recorded under Sec. 313 of the Code of Criminal Procedure that he retracted and denied making such a confession and went to the extent of saying that his signatures were obtained on blank pages. In the facts and circumstances of the case we are of the opinion that the confessional statements made by the appellant were voluntary in nature and could form the basis for conviction. 19. In the facts and circumstances of the case we are of the opinion that the confessional statements made by the appellant were voluntary in nature and could form the basis for conviction. 19. The view which we have taken above finds support from the judgment of this Court in the case of M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, 2003 (8) SCC 449 : AIR 2003 SC 4311 : 2003 AIR SCW 4975, in which it has been held as follows: "It has been established that the Customs Office was about 20 km. from the place where the truck and the car were apprehended. Having regard to the large quantity of the heroin, the said vehicles with accused 2, 3 and 6 were brought to the Customs Office. Further, Accused 1 and 2 did not know Tamil. A Hindi knowing officer had to be arranged. There was, under the circumstances no delay in recording the statements of the appellants. Further, it is also to be borne in mind that the appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial Judge under Sec. 313 of the Code of Criminal Procedure that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of the appellants' conviction." 20. The same view has been reiterated by this Court in the case of Kanhaiyalal, [ AIR 2008 SC 1044 : 2008 AIR SCW 627] in which it has been observed as follows: "Since it has been held by this Court that an officer for the purposes of Sec. 67 of the N.D.P.S. Act read with Sec. 42 thereof, is not a Police Officer, the bar under Secs. 24 and 27 of the Evidence Act cannot be attracted and the statement made by a person directed to appear before the officer concerned may be relied upon as a confessional statement against such person. Since a conviction can be maintained solely on the basis of a confession made under Sec. 67 of the N.D.P.S. Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant."" 65. Since a conviction can be maintained solely on the basis of a confession made under Sec. 67 of the N.D.P.S. Act, we see no reason to interfere with the conclusion of the High Court convicting the appellant."" 65. In M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, 2003 (8) SCC 449 , the retraction was made only when the accused was being examined under Sec. 313 of the Code of Criminal Procedure. No credence was given to such a retraction made after such a long time. The Supreme Court taking into consideration the entire factual matrix involved in the case opined that the confessional statement could not be held to be involuntary and they were voluntarily made. 66. In the aforesaid context, we may only say that if the confessional statement of an accused recorded under Sec. 67 of the N.D.P.S. Act is the only evidence, then the Court should be slow in holding the accused guilty solely on such evidence. While appreciating such evidence, more particularly, the confession of the accused, a holistic approach is necessary to be taken. The Court should not start with the confession. If there is other evidence on record, then the evidence of confession can be brought in aid to the other evidence on record. The trial Court, while weighing the evidentiary value of a statement of an accused recorded under Sec. 67 of the Act should not lose sight of the ground realities. The circumstances attendant to making of such statement should, in our considered opinion, be taken into consideration. 67. One contention with regard to the procedure adopted for the purposes of sealing the samples has also been raised. It is not the case of the appellants that the samples were not sealed. The case of the appellants is that there is no evidence forthcoming as to in what manner the packets containing the samples were handled. 68. So far this aspect of sealing is concerned, it has been well dealt with by the trial Court in its judgment, more particularly, in Paragraphs 37, 38, 39 and 40, which read thus: "37. The Prosecution Witness No. 1-Kishorekumar Shankarlal Joshi who is the witness to the panchnama Exh. 27 has been examined in this case. He corroborates the facts of panchnama Exh. 27 in his deposition. The Prosecution Witness No. 1-Kishorekumar Shankarlal Joshi who is the witness to the panchnama Exh. 27 has been examined in this case. He corroborates the facts of panchnama Exh. 27 in his deposition. In all, 11 packets of muddamal 'charas' were recovered from the accused and were given Marks-A to K and its gross weight has also been mentioned totalling 20.746 kilograms of 'charas'. The total weight of the said charas after the testing was shown on page Nos. 9 and 10 of the muddamal recovery panchnama. As mentioned aforesaid, all the 11 packets of the muddamal were given Marks-A to K, and upon testing all those 11 packets, the same were found to be 'charas'. Out of those, two representative samples of 25 grams were placed in separate covers by giving them mark as under: (1) A-1 to K-1 (2) A-2 to K-2 Thus, 11 packets were given Marks-A to K, 22 envelopes (cover) were given Marks A-1 to K-1 and A-2 to K-2 and the samples of the muddamal have been sent on 1-3-2009 to the Central Revenues Control Laboratory, New Delhi (hereinafter referred to as the C.R.C.L., New Delhi). The Prosecution Witness No. 2-Sishramsing Ramsing Sing has stated the facts on page No. 5 of his deposition Exh. 74 as to how the said samples were packed and were sent to the C.R.C.L., New Delhi, with details, by forwarding letter dated 2-3-2009 Exh. 86. Its report has been produced at Exh. 115 in this case. Looking to the said report Exh. 115, it appears that the said samples were received by the C.R.C.L., New Delhi on 6-3-2009, i.e. five days after the collection of the samples, and as mentioned aforesaid, the samples Marks A-1 to K-1 which were sent in a sealed condition were received intact and the said report is considered to be admissible under Sec. 293 of the Cr.P.C. Upon chemical analysis of these 11 samples, the report has come indicating the same to be 'charas' and its quantum is mentioned below: Sr.No. Lab.No Marked as % of the content Glass Wt. of sample along with auto pressed plastics pouch (gms.) 1. CLD-186(N) A-1 5.0(Five deci zero) 17.2 2. CLD-187(N) B-1 12.3(One two deci three) 17.4 3. CLD-188(N) C-1 8.0(Eight deci zero) 17.9 4. CLD-189(N) D-1 6.2 (Six deci two) 16.9 5. CLD-190(N) E-1 5.9(Five deci nine) 16.6 6. of sample along with auto pressed plastics pouch (gms.) 1. CLD-186(N) A-1 5.0(Five deci zero) 17.2 2. CLD-187(N) B-1 12.3(One two deci three) 17.4 3. CLD-188(N) C-1 8.0(Eight deci zero) 17.9 4. CLD-189(N) D-1 6.2 (Six deci two) 16.9 5. CLD-190(N) E-1 5.9(Five deci nine) 16.6 6. CLD-191(N) F-1 7.0 (Seven deci zero) 16.6 7. CLD-192(N) G-1 5.9(Five deci nine) 17.9 8. CLD-193(N) H-1 4.7(Four deci seven) 16.8 9. CLD-194(N) I-1 6.5(Six deci five) 16.7 10. CLD-195(N) J-1 5.7(Five deci seven) 17.5 11. CLD-196(N) K-1 11.5(One One deci Five) 16.8 38. Thus, looking further into this report, it clearly transpires that the muddamal seized from the accused person is charas. On the last page of this report, the date of dispatching the samples is shown to be 2-3-2007, which appears to be a printing error. In fact, it appears that the charas which was seized from the accused persons on 1-3-2009 was dispatched on 2-3-2009. Instead of that, in the report, inadvertently the year is shown as 2007. Thus, looking to such facts, it clearly transpires that a serious offence under the N.D.P.S. Act is made out against the accused persons. As discussed above, as all the mandatory provisions were followed by the N.C.B. officers, this report is required to be considered. It is the argument of the learned Advocate for the accused Nos. 1-2 that no officer from the C.R.C.L. has been examined, therefore, no officer of the C.R.C.L. is required to be examined as the report Exh. 115 is the public document as per Sec. 293 of Cr.P.C. and Sec. 74 of the Evidence Act and this report cannot be made admissible in evidence." 69. The F.S.L. report on record (Exh. 115) indicates that the seals were absolutely intact. The Supreme Court, in the case of Hardip Singh v. State of Punjab, reported in 2008 (8) SCC 557 , has held that when the seals are intact, even the delay in sending the seals to the laboratory would not be fatal to the prosecution case. 70. Thus, we are not impressed by any of the aforesaid submissions canvassed on behalf of the appellants except the principal argument with regard to the non-compliance of the proviso to Sec. 42(1) of the N.D.P.S. Act. 71. 70. Thus, we are not impressed by any of the aforesaid submissions canvassed on behalf of the appellants except the principal argument with regard to the non-compliance of the proviso to Sec. 42(1) of the N.D.P.S. Act. 71. In view of the aforesaid discussion, we have reached to the conclusion that the judgment and order of conviction passed by the trial Court is not sustainable in law. We are conscious of the fact that we are dealing with a very serious matter. We are dealing with a matter in which there was a recovery of 20 kgs. of 'charas'. 72. As observed above, one of the appellants, namely, Yusufbhai Ismailbhai Vohra, is concerned, it is his second conviction. However, a serious lapse on the part of the officers concerned has proved to be very costly to the prosecution. The prosecution must thank itself for its lapses. We are left with no other option but to acquit both the appellants. 73. The Supreme Court in the case of State of Punjab v. Baldev Singh, 1999 (6) SCC 172 , observed as under: "28. This Court cannot overlook the context in which the N.D.P.S. Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Sec. 50 are intended to serve dual purpose to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. The argument mat keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Sec. 50 may result in more acquittals does not appeal to us. The argument mat keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Sec. 50 may result in more acquittals does not appeal to us. If me empowered officer fails to comply with the requirements of Sec. 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted." 74. This is a case in which we attribute the acquittal of both the accused charged with a very serious offence of drug trafficking to nothing but gross ignorance of law and dereliction in duty on the part of the N.C.B. officers. The manner in which they have deposed before the Court only depicts that they were not aware about the mandatory provisions of law. 75. In the result, both the Appeals succeed and are hereby allowed. The judgment and order of conviction and sentence passed by the 4th Additional Special Judge, Sabarkantha at Modasa, in the N.D.P.S. Case No. 1 of 2015 (Old N.D.P.S. Case No. 4 of 2009) are hereby quashed and set-aside. Both the appellants are ordered to be acquitted of all the charges levelled against them. They be set at liberty forthwith, if not required in any other case. 76. In view of the above, the two connected applications preferred by the appellants seeking temporary bail would not survive and are disposed of accordingly.