JUDGMENT : (Rajesh Sekhri, J.) : 1. This appeal has been directed against judgment dated 05.03.2011, propounded by learned 2nd Additional Sessions Judge, Jammu (hereinafter referred to as "trial court") in File No. 12/Sessions titled "State of J&K v. Ashok Kumar and Anr.", vide FIR No. 177/ 2000 of Police Station Bahu Fort, Jammu for offences under sections 21/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 ("NDPS Act" for short), vide which, respondent has been acquitted. 2. The case set up by the prosecution in brief, is that on 05.06.2000 at about 7 P.M, a joint Naka of Police Station, Bahu Fort led by S.P., and NCB was laid at Panama Chowk. A Scooter, without registration number, on its way from Vikram Chowk to Railway Station was intercepted. While two pillion riders were apprehended by the Naka party, driver of the Scooter succeeded to give a slip to the Naka party and fled away. Accused apprehended on spot were found carrying a black colour bag. As the said bag was giving smell of some substance, a notice was given to the accused for exercise of option to be searched in presence of Magistrate or Gazetted Officer. Since they opted to be searched in the presence of Magistrate, Tehsildar JDA, through Constable Rajinder Kumar, was called on the spot, in whose presence bag was searched and 10 bags of heroin were recovered. Higher Officers were informed via wireless. The contraband was weighed on the spot with the help a weighing pan, taken from a shopkeeper namely, Des Raj, and each packet was found to contain 01 Kg of contraband. One and a half gram of heroin each was drawn as samples from the 10 packets and samples were sealed on the spot in the presence of Magistrate. Certificate of search was also obtained from the Magistrate. Since accused were found in illegal possession of the Contraband, a docket was flashed to the Police Station, through Shahid Parvez, for formal registration of FIR. The aforesaid FIR came to be registered and investigation was entrusted to PW-Sham Lal. After rituals of formal investigation, including recovery and seizure of the contraband, preparation of samples and forwarding of the same to FSL for chemical examination, since aforesaid offences were established against accused, a final report in terms of Sections 173 of Code of Criminal Procedure, 1973 (for short “CrPC”) was filed on 21.07.2000. 3. After rituals of formal investigation, including recovery and seizure of the contraband, preparation of samples and forwarding of the same to FSL for chemical examination, since aforesaid offences were established against accused, a final report in terms of Sections 173 of Code of Criminal Procedure, 1973 (for short “CrPC”) was filed on 21.07.2000. 3. Respondent-Ashok Kumar was charge-sheeted by the trial court on 10.03.2001 for the aforesaid offences, whereby he pleaded innocence and claimed trial, therefore prosecution was directed to produce the evidence. 4. It is pertinent to mention that respondent no. 2-Balwant Raj absconded, during the trial and proceedings under section 512 CrPC were initiated against him on 21.10.2003. 5. The prosecution has examined as many as 13 witnesses in the case. For the sake of brevity, instead of a detailed resume of the testimonies of the prosecution witnesses, relevant part of their testimonies are proposed to be resorted, as and when required. It is pertinent to mention that respondent denied the incriminating imputations arrogated to him and opted not to enter the defence. 6. Learned trial court, on appreciation of the prosecution evidence and hearing the rival sides, has acquitted the respondent as noted at the outset. 7. Having heard the rival contentions and perused the impugned judgment, we find ourselves in total agreement with the findings recorded by learned Trial Court. 8. The appellant-State has assailed the impugned judgment inter alia on the ground that learned Trial Court has failed to appreciate the evidence in the right perspective and impugned judgment has been passed in a mechanical fashion despite sufficient material on record to sustain conviction of the respondent. 9. Mr. Amit Gupta, learned AAG has reiterated the grounds urged in the memo of appeal. 10. However, on minute evaluation of the impugned judgment as also the prosecution evidence, we are of the considered opinion that case of the appellant-state in the Trial Court was not only discrepant on material aspects and replete with contradictions but investigation agency has failed to adhere to mandatory provisions ingrained in the NDPS Act. 11. 10. However, on minute evaluation of the impugned judgment as also the prosecution evidence, we are of the considered opinion that case of the appellant-state in the Trial Court was not only discrepant on material aspects and replete with contradictions but investigation agency has failed to adhere to mandatory provisions ingrained in the NDPS Act. 11. Before a closer look at the grounds urged in memo of appeal, it may be recalled that since offences under the NDPS Act, being heinous in nature, are visited with severe punishment and the legislature, in its wisdom, has provided safeguards to be followed by the investigating agency, various provisions, with respect to arrest, search and seizure have been incorporated in Chapter-V of the NDPS Act to ensure that no innocent person is subjected to harassment. 12. Section 42 of the NDPS Act, is one of the salutary provisions, the investigating agency is obliged to follow. It mandates that the investigating officer is obliged to reduce the information received by him into writing and forward a copy thereof to his immediate superior officer within 72 hours. 13. Reverting to the present case, it is the case of the appellant and consistent testimonies of all the material prosecution witnesses, including SP Sheikh Mehmood and SHO Shahid Parvez that they had received source information and on the basis of said information, joint Naka was laid to apprehend the accused persons. PW-Sheikh Mehmood, SP, has testified in clear terms that he had received source information 2/3 hours prior to the occurrence and, therefore, Naka was laid at Panama Chowk on the basis of said information. However, his statement is silent about the fact whether such information was reduced into writing by him and communicated to superior officers within statutory period of 72 hours or not. Similarly, PW-Nek Ram has testified that SHO had received prior telephonic information from the SP that some boys were involved in Narco smuggling in Jammu, on the basis of which joint Naka of Police, NCB and SOG was laid and the SHO, PW-Shahid Parvez has also admitted in cross-examination that he was informed by the SP at about 4/5 p.m that Naka was to be laid at Panama Chowk. It is evident from the statement of these material witnesses including SP and SHO that there was prior information with respect to the occurrence. It is evident from the statement of these material witnesses including SP and SHO that there was prior information with respect to the occurrence. However, neither the said information was reduced into writing nor same was communicated to the superior officers. The investigating agency, as such, has given a complete go bye to the mandatory provisions of Section 42 of the NDPS Act. 14. In a similar fact situation, Hon'ble Supreme Court in Karnail Singh v. State of Haryana reported as (2000) 2 SCC 513 , has ruled that non-compliance of Section 42 of the NDPS Act vitiates the trial. Relevant extract of the judgment reads thus:- "Under section 42(2) as it stood prior to amendment such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same would adversely affect the prosecution case and 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, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non-compliance of which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to immediate official superior and not to any other condition of the Section." (Emphasis supplied) 15. A similar view has been expressed by Hon'ble Supreme Court in 2009 AIR (Criminal) 401 SC. 16. It is manifest from the aforequoted case law that non-compliance of Section 42 NDPC Act, vitiates the trial. 17. Although learned counsel for the respondent as also the prosecution in the trial court also raised the issue of infraction of Section 50 of NDPS Act, however, learned trial court has rightly observed that Section 50 is attracted only in cases where search of person is conducted within the meaning of sub-section (1) of Section 50 NDPS Act and since in the present case, the recovery was effected from the bags of accused. Section 50 is not applicable in the case. Section 50 is not applicable in the case. The reliance placed by learned Trial Court on 2010 (1) RCR (Criminal) 112 is well found, relevant extract whereof reads as:- "So far as the conclusion regarding Section 50 recorded by trial court and the High Court are concerned, they same are not in line with what this Court has said. Section 50 has application only when there was personal search. In the instant case the samples were collected, after seizure, from her bag. Nevertheless, there has been non-compliance with the requirement of Section 42(2) as recorded both by the trial court and the High Court. That being so there is no merit in this appeal". 18. Another violation of law underlined by learned Trial Court is with respect to non-association of civilians, despite the prosecution case and the prosecution evidence that at the time Naka shops were open and there were customers in the shops. It is none of the case of prosecution that since no civilians were available on the spot, therefore, only official witnesses were associated with the search, recovery and seizure of the contraband. It appears from the conspectus of the entire prosecution evidence that no attempt was ever made by the Senior Police Officers on the spot including SP, PW-Sheikh Mehmood, SHO, PW-Shahid Parvez or the Investigating Officer PW-Sham Lal to call the civilians on the spot and associate them with the search, recovery and seizure process. The compliance with the procedural safeguard contained in the CrPC is intended to serve dual purpose, i.e. to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the authorized officer and where mandatory provisions of CrPC are observed in breach and the error or illegality touching the procedure committed by the authorized officer is so patent and obtrusive that it leaves and indelible stamp of infirmity or vice which cannot be obliterated or cured, then it would be hazardous to place implicit reliance on it, as observed in 2000 Cri.L.J. 2645. 19. It is pertinent to mention that, in the present case, source information was received by the Senior Police Officers' 2/3 hours prior to the occurrence and, therefore, they had sufficient time to associate any civilian or independent witness to search, recovery and seizure. 19. It is pertinent to mention that, in the present case, source information was received by the Senior Police Officers' 2/3 hours prior to the occurrence and, therefore, they had sufficient time to associate any civilian or independent witness to search, recovery and seizure. It is not the case, where information was suddenly received during the Naka duty that there was no such time to associate independent witnesses to the recovery and seizure process. There was nothing on record to suggest either that any request or an order in writing was made to any independent witness to cooperate with the investigation for the purpose of search and seizure. It may happen that for a variety of reasons, a civilian or a public witness may decline to associate with investigation and if a civilian or independent witness declines to be associated with the investigation without justifiable reason he will be deemed to have committed an offence under section 187 IPC. It appears that there is deliberate attempt to defeat the legislative safeguard in this respect as held in Rattan Lal v. State; [(1987) 2 Crimes 29 Delhi] and [2010 (1) RCR (Criminal) 589]. 20. Another material aspect noticed by learned Trial Court is that it is also case of the prosecution that 10 packets of heroin were recovered and seized on the spot and seizure memos were prepared. All these documents/memos were produced before the I.O., who seized the documents/memos vide seizure memo EXPW-GC/1. However all the aforesaid seizure memos/documents, before their seizure by the Investigating Officer, were bearing the FIR Number and the offences. The occurrence in the present case is stated to have been taken place at 7 PM and according to the I.O., FIR was lodged at 8.15 PM, on the basis of report forwarded by the SHO and he reached on spot at 8.35 PM. It is obvious that aforesaid memos were prepared on the spot before registration of the FIR, therefore, there could not be FIR number or mention of offences on the documents prepared before registration of FIR. Learned Trial Court has rightly observed that this gives rise to two inferences that either FIR was registered prior to the alleged search, recovery and seizure of the contraband or FIR Number and offences were inserted in the aforesaid documents after registration of the FIR. Learned Trial Court has rightly observed that this gives rise to two inferences that either FIR was registered prior to the alleged search, recovery and seizure of the contraband or FIR Number and offences were inserted in the aforesaid documents after registration of the FIR. In any case, it reflects upon the credibility of the prosecution case and robes the efficacy and testimonial potency of the official witnesses. Viewed thus, it shall be highly unsafe to place implicit reliance upon the testimony of Police officials without corroboration from independent witnesses. As no independent or civilian has been associated with the investigation or the search recovery and seizure process as observed earlier, therefore, no such corroboration is coming forth in the present case and it is sufficient to shake the very foundation of the prosecution story. 21. Be that as it may, learned Trial Court has also noticed following material contradictions and discrepancies in the prosecution evidence. 22. First and foremost, there is a variation with respect to the description of the instrument used for weighing the contraband. PW-Nek Ram has stated that the weighing scale was having a stand, whereas as per PW-Gian Chand, the instrument used for weighing the contraband was having an iron bar with pans attached to it. The weighing instrument with iron bar and pans attached to it is an instrument which is used to weigh an object by holding the iron bar with one hand, whereas the instrument with a stand can be used by placing the same on a table. This contradiction creates a doubt about the very presence of police witnesses on the spot. 23. Further, PW-Tersam Lal has deposed that driver of the Scooter fled from the spot and Police did not chase him. PW-Nek Ram has also stated that he stopped the Scooter, driver of the Scooter fled towards the railway track and he did not chase him. However, PW-Gian Chand has stated that 2/3 Constables of Police Station, Trikuta Nagar ran after the driver, who fled from the spot. 24. Another staggering circumstance to shake the credibility of the prosecution case is that when accused persons exercised their option to be searched in the presence of Magistrate, Tehsildar (JDA) was summoned on the spot through Rajinder Kumar Constable. 24. Another staggering circumstance to shake the credibility of the prosecution case is that when accused persons exercised their option to be searched in the presence of Magistrate, Tehsildar (JDA) was summoned on the spot through Rajinder Kumar Constable. Tehsildar came to the spot in a Gypsy of Police Station, thereafter the bag of accused was searched and recovery and seizure were effected. The material prosecution witnesses including SP, PW-Sheikh Mehmood, SHO Sheikh Parvez and PW-Nek Ram have testified on the same lines that when accused person exercised their option to be searched in the presence of Magistrate, the Magistrate was called on the spot. However, the whole prosecution story and the claim of these material prosecution witnesses has been falsified by none other than the Executive Magistrate himself. According to PW-Shamsher Singh, Tehsildar JDA, he reached the Police Station at 10.30 P.M or 12 P.M, 10 packets were produced before him by the Police and he resealed the packets. He has clarified in his cross-examination that packets were not weighed in his presence and accused were searched in the room of a Police Station. This statement of the Executive Magistrate alone is sufficient to dislodge the entire prosecution case. 25. Be that as it may, another lacuna, which has escaped the attention of learned Trial Court is that prosecution has failed to prove that contraband recovered in the present case was kept in the safe custody and forwarded to FSL is inconsonance with provisions of law and without any delay. Be it noted that in view of stringent provisions regarding punishment and grant of bail, the legislature in its wisdom enacted Section 55 of the NDPS Act to ensure that Officer Incharge of Police Station shall immediately take charge and keep the alleged contraband in safe custody, in order to rule out any possibility of tampering. Prosecution is obliged to prove that the contraband after its recovery and seizure from the accused was kept in safe custody, in the Malkhana of the concerned Police Station under proper entry in the Malkhana register and samples of the contraband were forwarded to FSL without any delay. 26. Prosecution is obliged to prove that the contraband after its recovery and seizure from the accused was kept in safe custody, in the Malkhana of the concerned Police Station under proper entry in the Malkhana register and samples of the contraband were forwarded to FSL without any delay. 26. Hon'ble Supreme Court in State of Rajasthan v. Gurmail Singh reported as AIR 2005 SC 1578 has clearly ruled that if the link evidence adduced by the prosecution is not satisfactory and Malkhana Register is not produced to prove that contraband was kept in the safe custody of the Malkhana, the prosecution case shall be viewed doubtful. The relevant observation of the judgment reads thus:- "We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent". 27. A similar view has been expressed by the Apex Court in State of Rajasthan v. Daulat Ram reported as AIR 1980 SC 1314 . 28. It is evident, therefore that failure on the part of prosecution to prove that the contraband after its recovery and seizure and after proper sealing and resealing in accordance with law, was kept in the safe custody of the Police Station and that samples were forwarded to the FSL without any delay, vitiates the trial. 29. Having considered the evidence led by the prosecution in the trial Court in its entirety, we are of the considered opinion that there is not only infraction of various mandatory provisions of NDPS Act, but prosecution evidence is found discrepant on material factual aspects. 29. Having considered the evidence led by the prosecution in the trial Court in its entirety, we are of the considered opinion that there is not only infraction of various mandatory provisions of NDPS Act, but prosecution evidence is found discrepant on material factual aspects. In this backdrop, there is no scope to raise hypothesis of guilt against the respondents for the commission of offences, they have been charged with. Thus considered, we do not find any illegality, muchless, perversity in the impugned judgment. 30. Viewed thus, the present appeal, being devoid of merit, is dismissed and impugned judgment is upheld. Record of the trial court, if any, be returned forthwith. Respondents are discharged of their bail bonds.