JUDGMENT : J. B. Pardiwala, J. 1. This Criminal Appeal is at the instance of the State of Gujarat questioning the legality and validity of the judgment and order of acquittal passed by the Additional Sessions Judge and Special Judge, Jamnagar dated 10th October, 1995 in the Criminal Case [N.D.P.S.] No.08 of 1994. 2. We take notice of the fact that in all five accused were put on trial in the Court of the Additional Sessions Judge, Jamnagar for the offences punishable under Sections 20 and 22 respectively of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for short ‘The Act, 1985’]. 3. CASE OF THE PROSECUTION: The District Superintendent of Police, Jamnagar received information that narcotic substance has been clandestinely concealed at two places i.e. at house of the original accused nos.1 and 3 and some part of the contraband was stored at the house of the original accused no.4. On receipt of such information, the Superintendent of Police deputed two police officers viz. Shri Charan and Shri Gohil for the purpose of raiding the premises of the accused persons. According to the case of the prosecution, the search was carried out first at the house of the original accused no.1 [since deceased] and in the course of the search, Charas weighing 1370 grams was recovered. This contraband was found stored in a Jar. Upon interrogation of the original accused nos.1, 2 and 3, the raiding team proceeded at the Defence Colony, Jamnagar. In the course of the search carried out at the residential premises of the accused no.4, Charas weighing 267 grams was recovered. At the time of the search carried out at the residential house of accused no.4, the accused no.5 was also present. 4. The contraband recovered was, thereafter, sealed in small packages. Shri V.D. Gohil, the Police Sub Inspector, Traffic Branch, Jamnagar City lodged the F.I.R., Exh.37, dated 24th July 1993. On the F.I.R. being registered, the further investigation was undertaken. At the end of the investigation, charge-sheet came to be filed against the accused persons for the offences enumerated above. 5. The Additional Sessions Judge, Jamnagar vide order dated 3rd December, 1994 framed Charge at Exh.6 against the accused persons. On the F.I.R. being registered, the further investigation was undertaken. At the end of the investigation, charge-sheet came to be filed against the accused persons for the offences enumerated above. 5. The Additional Sessions Judge, Jamnagar vide order dated 3rd December, 1994 framed Charge at Exh.6 against the accused persons. The Charge framed against the accused persons reads thus: CHARGE I, the undersigned, A. S. Budhwani, Additional Sessions Judge, Jamnagar, hereby frame charges upon you the above named accused persons that; Upon making a raid by police at your home on 24/12/1993 at 12:40 Hours, you accused No.1 and your two sons, accused nos.2 & 3 were present at home. During search, quantity of 450 gram Charas, second quantity 460 gram and third quantity 460 gram was found. Thus, total quantity of 1370 gram bearing value of Rs.34,250 was found. Moreover, Charas was also found from the accused No.4 Indrapalsing alias Gopal Mukhtyarsing residing in the Defence Colony during the search and at that time the accused No.5 Jagbirsinh alias Pappu Nanka Valmiki was also present there. A quantity of 267 gram Charas was found in possession of accused Nos. 4 and 5. Its value happens to be of Rs.6675/. Such illegal quantity is found. Accordingly, you accused persons have committed an offence punishable under Section 20 and 22 of Narcotics Drug and Psychotropic Substances Act,1985, as mentioned above, in my jurisdiction. Sd/illegible (A.S.Budhwani) Addl. Sessions Judge, Jamnagar. 6. The accused persons pleaded not guilty to the aforesaid charge and claimed to be tried. 7. The prosecution led the following oral evidence: Sr. No. P.W. No.; Exh. No. Particulars of Witness Remarks Page No. 1 --- --- The case of the prosecution is that on 24/12/1993 at around 12.40 PM the raiding party raided the residential premises of Accused No.1 to 3 discovered 1370 gms. Of charas and based on further information being provided by the Accused No.1 to 3 raided the residential premises of accused nos.4 and 5 and discovered 267 gms. Of charas. Of charas and based on further information being provided by the Accused No.1 to 3 raided the residential premises of accused nos.4 and 5 and discovered 267 gms. Of charas. -- 2 Exh.6 --- Charge 35 3 P.W.1; Exh.12 Prakash Dipsinh Chauhan Panch 47 to 58 4 P.W.2; Exh.25 Narubha Rupsinh Panch 59 to 72 5 P.W.3; Exh.25 Suresh Parshottam Panch (Hostile) 73 to 74 6 P.W.4; Exh.35 Saleman Osaman Panch (Hostile) 75 to 76 7 P.W.5; Exh.5 Vikramsinh Dashrathsinh Raiding Party 77 to 100 8 P.W.7; Exh.43 Pravinsinh Dolatsinh Raiding Party 115 to 128 9 P.W.9; Exh.45 Ratogar Dharamgar Officer who sent the Report 133 to 138 10 P.W.13; Exh.60 Bedidan Charan Raiding Party 159 to 170 11 Exh.46 Report --- 419-421 8. On conclusion of the recording of the oral evidence, the trial Court recorded the statement of the accused persons under Section-313 of the Code of Criminal Procedure. The accused persons stated that they were innocent and a false case had been instituted against them. Upon overall appreciation of the oral as well as documentary evidence on record, the trial Court vide judgment and order dated 10th October, 1995 acquitted all the five accused of the charges enumerated above. 9. The State of Gujarat being dissatisfied with the judgment and order of acquittal passed by the trial Court is here before this Court with the present acquittal appeal. 10. Mr. Chintan Dave, the learned APP appearing for the State vehemently submitted that the trial Court committed a serious error in recording the finding that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. The learned APP would submit that on receipt of specific information, the two police officers were deputed by the Superintendent of Police to carry out the raid and search the premises of the accused persons. The raiding team in the course of the search recovered in all 1637 grams of Charas. It is pointed out that 1370 grams of charas was recovered from the residential house of the accused nos. 1 and 3 and 267 grams of charas was recovered from the house of the accused no.4. The learned APP would submit that the investigation revealed that all the five accused were dealing in narcotics. He would submit that the search was undertaken in the presence of the panch-witnesses. 1 and 3 and 267 grams of charas was recovered from the house of the accused no.4. The learned APP would submit that the investigation revealed that all the five accused were dealing in narcotics. He would submit that the search was undertaken in the presence of the panch-witnesses. He would further submit that there was no good reason for the trial Court to disbelieve the recovery of the contraband from the possession of the accused persons. Mr. Dave, the learned APP pointed out that the acquittal is substantially on the two grounds; first, non-compliance of Section-42(2) of the Act, 1985 and secondly, the trial Court found that the sealing procedure adopted by the investigating agency was not correct and the same was found to be very faulty. 11. Mr. Dave, the learned APP would submit that the trial Court ought not to have acquitted the accused persons on the above two grounds. In such circumstances referred to above, the learned APP prays that there being merit in this acquittal appeal, the same be allowed and the accused persons be held guilty of the offences with which they were charged. At this stage, the learned APP also pointed out that during the pendency of this Criminal Appeal, the original accused no.1 viz. Virendrasingh Pruthvisingh Tomar passed away. In such circumstances, the appeal could be said to have been abated so far as the accused no.1 is concerned. 12. On the other-hand, this appeal has been vehemently opposed by Mr. Ruturaj Nanavati, the learned counsel appearing for the original accused nos.1 and 2 respectively. The original accused nos.3, 4 and 5 although served with the notice issued by this Court, yet have chosen not to appear before this Court either in person or through an advocate. 13 Mr. Nanavati would submit that no error not to speak of any error of law could be said to have been committed by the trial Court in acquitting the accused persons. He would submit that compliance of Section-42(2) of the Act, 1985 is mandatory. The non-compliance of the same would render the entire search illegal and thereby, would vitiate the trial. He would submit that the Superintendent of Police failed to reduce the information in writing. According to Mr. Nanavati, the case is one of non-compliance of Section-41(2) as well as Section-42(2) of the Act, 1985. Mr. The non-compliance of the same would render the entire search illegal and thereby, would vitiate the trial. He would submit that the Superintendent of Police failed to reduce the information in writing. According to Mr. Nanavati, the case is one of non-compliance of Section-41(2) as well as Section-42(2) of the Act, 1985. Mr. Nanavati would submit that the trial Court has assigned cogent reason for the purpose of arriving at the conclusion that the prosecution has failed to prove its case beyond the reasonable doubt. 14. In such circumstances referred to above, the learned counsel prays that there being no merit in this criminal appeal, the same be dismissed. 15. 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 that whether the trial Court committed any error in acquitting the accused persons. 16. We straightway go to the findings recorded by the trial Court as contained in Paragraph-49 of the judgment. Paragraph-49 of the judgment of the trial Court deals with the aspect of the procedure adopted for the purpose of sealing the contraband. We quote the findings recorded by the trial Court as contained in Paragraph-49 as under : “49. Argument has also been raised by the defence that, the muddamal sample packet has not been sealed as per the legal provisions in this case and therefore the possibility of tampering with the sample packet can not be denied and therefore, the accused persons should be acquitted for that reason too. In support of these arguments, the defense has relied upon principles established in the various judgments. On reading over the evidence of the defence on this issue, it has been revealed in the evidence of the panch Deepsinh Chauhan that, the slips containing his signature were not kept in the muddamal cover but was affixed on the cover. Whereas, it has been mentioned in the panchnama of exhibit-23 that, two slips of this kind were prepared and one slip was placed in each cover and one slip was affixed on the cover. Whereas, it has been mentioned in the panchnama of exhibit-23 that, two slips of this kind were prepared and one slip was placed in each cover and one slip was affixed on the cover. Total eight sealed packets comprising of muddamal sample packets and sealed packets of remaining stock were opened before the court during the evidence of the other panch Rula Rupsinh at exhibit-25 and the eight slips found in all of those covers containing signatures of the the pancha are produced vide exhibit-26 to 33. These slips are prepared in two copies with help of carbon paper. Carbon copy was placed in each cover and first copy was affixed on each cover. In reference with this, it has also been discovered in the evidence of the Police Officers that, after preparing the sample packet and packets of remaining stock, the same were sealed and thereafter, all these eight covers were handed over to the P.S.O Ratigar Dharamagar at exhibit-45 in sealed condition and panchnama of exhibit-48 was drawn in that regard. It has emerged from the evidence of witness Ratigar Dharamgar, PSO that after receiving the packet, he did not affix any separate seal of his designation on the cover. Seal of P.I. was affixed on all the packets. Three seals of P.I. were affixed on the muddamal and sample packet at the place of raid. While an evidence has been submitted stating that the PSO had affixed one seal of P.I. on each cover in the police station. Thus, it means that there should be four seals of P.I. on each cover but these four seals are not found on muddamal packet. Under these circumstances, it is not a credible evidence that the PSO had affixed some other seal on the packet. Upon examining the muddamal sample packet, it is clear that no seal was affixed on the opening part of the cover and seals were affixed on the remaining part of the cover. Muddamal covers were prepared in such way that the opening part can be opened, keeping all the seals intact. Hence, there is possibility that sample and other covers can be tempered with. As per section 55 of NDPS act, when sealed covers are handed over to the PSO, he is required to affix seal of his designation on each packet. Muddamal covers were prepared in such way that the opening part can be opened, keeping all the seals intact. Hence, there is possibility that sample and other covers can be tempered with. As per section 55 of NDPS act, when sealed covers are handed over to the PSO, he is required to affix seal of his designation on each packet. If he fails to do so then it shall be considered as breach of mandatory provisions, as per prosecution, which is established in judgment of Peter Robertson vs. State, 1988, Drugs cases (Delhi High Court), 86. Hence, in this case, all the accused persons deserve to be acquitted because of breach of mandatory provisions since the PSO did not affix his seal on each packet.” 17. Thus, the finding recorded by the trial Court referred to above is to the effect that there was no proper sealing of the contraband. According to the trial Court, there cannot be any laxity in following the procedure relating to the sealing of the seized contraband articles. The finding recorded by the trial Court is very specific and clear. At the time of sealing, the slips containing signatures of the panch-witnesses as well as the Investigating Officers are affixed on the articles seized and a seal is applied over it, so that, in case of any attempt for tampering with the articles seized, the seal would be broken and the slip would be torn, which would immediately reveal such an attempt. The trial Court takes notice of the fact that the slips containing signatures of the panch-witnesses were put inside the covers. In such circumstances, the trial Court came to the conclusion that the procedure followed for sealing was not proper and free from any possibility of tampering. 18. The aforesaid view of the trial Court is fully fortified by a decision of this Court in the case of Vipulkumar Jaydevbhai BArot Vs. State of Gujarat; Criminal Appeal No.2088 of 2005 with Criminal Appeal No.2203 of 2005; decided on 25th September, 2008, wherein this Court has observed as under: “8. On perusal of the record, we find that the panchnama drawn at the time of seizure and drawing of sample clearly indicates that the slips signed by the panch-witnesses were placed into the packet containing the contraband article, or the samples drawn therefrom. On perusal of the record, we find that the panchnama drawn at the time of seizure and drawing of sample clearly indicates that the slips signed by the panch-witnesses were placed into the packet containing the contraband article, or the samples drawn therefrom. Thereafter the packet was sealed, tied with a thread and wax-seal of the Investigating Officer was affixed. This is reflected in the F.S.L. Report as well. The FIR also indicates the same situation. 8.1 Learned A.P.P. Mr. Patel does not dispute the above factual aspect regarding slip/s being inside the cover and not affixed on the cover below the wax-seal. 9. In our opinion, the contention regarding laxity in following the procedure relating to sealing of the seized contraband article has some substance. It is clear from the panchnama (Exh. 70), FIR (Exh.156) and FSL report (Exh.144), so also the deposition of the raiding officer (Exh.95) that the correct procedure for sealing has not been followed to rule out the possibility of tampering with the contraband article seized or samples drawn therefrom. It is found that after drawing the samples, at the time of sealing the samples as well as the remainder of the contraband seized, the slips containing signatures of the panch-witnesses and the police officer were placed inside the packets and, therefore, the possibility of tampering with the muddamal at the later stage and then again resealing the same by the investigating agency, cannot be ruled out. The very purpose behind carrying out the search, taking of sample and sealing in presence of panch-witnesses is to ensure that there is no scope for any mischief in the procedure required to be followed. At the time of sealing, slips containing signatures of panch-witnesses as well as the investigating officer are affixed on the articles seized and a seal is applied over it, so that, in case of any attempt for tampering with the article seized, the seal would be broken or the slip would be torn, which would immediately reveal such an attempt. If the slip is put inside as was done in the instant case, the possibility of tampering cannot be ruled out. Under the circumstances, the procedure followed for sealing in the instant case cannot be said to be proper and free from any possibility of tampering. If the slip is put inside as was done in the instant case, the possibility of tampering cannot be ruled out. Under the circumstances, the procedure followed for sealing in the instant case cannot be said to be proper and free from any possibility of tampering. The procedure, therefore, cannot be said to be beyond the scope of any reasonable doubt and in that event, benefit must go to the accused. 10. This Court has taken similar view in (i) Criminal Appeal No. 323/1996, (ii) Criminal Appeal No.287/1999, (iii) Navinkumar @ Shambhuprasad @ Bapji Chimanlal Vyas v. State of Gujarat, 2006(1) GLH 409 , and (iv) Sohanlal Kasiram Brahmin & Anr. vs. State of Gujarat, 2007(1) GLH 131 . 11. Since the defect in sealing procedure while sealing the contraband article or drawing samples therefrom would go to the root of the prosecution case and affect the investigation and the trial and since we have found such a defect in the procedure, we do not propose to deal with the other aspects of the appeal. 12. Being conscious about the menace of narcotic drugs and psychotropic substance in the society, we only quote what has been observed by this Court in Criminal Appeal No.323/1996, as under: “It cannot be overlooked that society is facing the menace of drugs and persons involved in such drugs need to be appropriately dealt with. The society needs to be protected from persons indulging in such activities. The Legislature has, for that purpose, enacted laws with stringent arrangements. But for that purpose, the prescribed procedure has to be strictly followed by the Investigating Agency. Failure on the part of the Investigating Agency may result in non-fulfilment of the purpose behind the enactments. The Apex Court, in the case of State of Punjab v. Baldev Singh, 1993(3) GLR 2483, in paragraph 31, observed as follows : '31. There is indeed a need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. There is indeed a need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the officials concerned, so that the laxity on the part of the investigating authority is curbed.” We only hope that the authorities concerned will take appropriate action to avoid such eventualities, as in the instant case.” 13. Both the appellants came to be convicted for the offences under the Bombay Prohibition Act as well. By virtue of the common panchnama, the contraband substance under the N.D.P.S. Act as well as the contraband liquor under the Bombay Prohibition Act came to be seized by the police. The seizure process of contraband substance under the N.D.P.S Act is held to be defective and in violation of ratio laid down in the rulings discussed elaborately hereinabove and consequently, the panchnama is not believed by the Court and the appellants are held to be entitled to the benefit of doubt. The appellants, therefore, are entitled to the same benefits even in connection with commission of less serious offences under the Bombay Prohibition Act and the same benefits deserve to be extended to them.” 19. In view of the aforesaid, we see no good reason to disturb the judgment and order of acquittal passed by the trial Court. 20. In the result, this appeal fails and is hereby dismissed.