Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 2925 (ALL)

Mohd. Haleem v. State of U. P.

2023-12-22

KARUNESH SINGH PAWAR

body2023
JUDGMENT : Karunesh Singh Pawar, J. 1. Criminal appeal No.201 of 1994 and the connected criminal appeals No.182, 191 and 206 - all of 1994, were heard together and a common judgment is being passed as the appeals arise out of same sessions trial. Criminal Appeal No.201 of 1994 is the leading case. 2. Present criminal appeals have been preferred against the judgment and order dated 19.4.1994 passed by Special Judge/Additional Sessions Judge, Barabanki in Sessions Trial No.296 of 1987 whereby the accused appellants have been convicted and sentenced to undergo 10 years R.I. with Rs.1 lac fine in each of the offences under sections 8/18, 8/21 and 8/22 of N.D.P.S. Act, with default provision. 3. Heard learned counsel for the appellants and learned AGA for the State. 4. During pendency of this appeal, appellant no. 1 and appellant no. 3 of criminal appeal No.201 of 1994 have died and the appeal with regard to appellant no. 1 and appellant no. 3 has already been abated vide order dated 14.03.2013. The Court thus proceeds to hear the appeal qua appellant no. 2 Mohd. Habeeb and appellant no.4 Lal Mohammad as regards the leading criminal appeal. Likewise, in criminal appeal No.206 of 1994, the appellant No.2 Mohammad Kaleem has died and the appeal qua the said appellant has abated vide order dated 18.9.2023. Thus, the appeal with regard to Mohammad Aneesh, appellant No.1 is taken up for hearing along with other criminal appeals. 5. Prosecution case is that on 03.06.1986, when the S.O. R.P. Shukla was present in police station and at 12:15 hours in the day, a secret informer informed that in the house of one Mohammad Ali son of Bhaggan, Village Tikra Usma, P.S. Jaidpur, Barabanki, Ante through 22-25 persons are making morphine. On this information, he took the present police personnel namely SI Sri Harishankar Singh, SI Sri A.K. Singh, Sri Jagpal Singh, Constable-187 Ramkrishn Mishra, Constable- 344 Jitendra Singh, Constable-507 Kavaldev Singh, Constable-595 Dhanpat Lal, Constable-556 Ramashankar Yadav, Constable-114 Udaybhan Singh and also constables G-Company of second Batallion PAC who were present at the police station HC-9738 Tassavur hussain Khan, Constable-9804 Ram Prasad Tiwari, Constable 9959 Ram Kewal Singh, Constable 9794 Hardev Ram and Jeep Driver Constable Ram Prakash along with Govt. Jeep No. UTD-5018 reached to the house of Mohammad Ali and entered from the west gate and on seeing police personnel, Atik Ante son of Yaseen, Javir son of Wahid, Moharram Ali son of Bhaggan, Mahbube son of Moharram Ali, Younis son of Moharram Ali ran away from the north stairs of the house and jumped towards eastern side. Efforts were made to catch them, however, it went in vain. Other accused persons who were making morphine and were trying to escape at about 1:05 hours were caught along with the equipments and chemicals. Upon questioning they told their names as (i) Mohd. Aleem son of Sohrav, (ii) Mohd. Haleem son of Mohd. Saleem, (iii) Mohd. Haveev son of Shafi (iv) Abdul Mabood son of Mohd. Mustafa, (v) Shahe Alam son of Bhaggan, (vi) Mohd Ajeem son of fSohrav, (vii) Mohd. Akeel son of Mohd. Naseer, (viii) Mohd. Jaleel son of Mohd. Saleem, (ix) Mohd. Anees son of Mohd. Vaseer, (x) Mohd. Younis son of Cheda, (xi) Mohd. Suleman son of Abdul Gaffur, (xii) Mohd. Anees son of Bhaggan Sakinan Tikra Usma, P.S. Jaidpur, Barabanki, (xiii) Abdul Majeed son of Mod. Raseem, (xiv) Mohd. Haneef son of Suleman, (xv) Mohd. Kaleem son of Saleem Sakinan Tikra Murtaza, P.S. Jiadpur Barabanki and (xvi) Lal Mohammad son of Fakeere, P.S. Safdarganj, Barabanki. Upon inquiry it was informed that the morphine belongs to Atiq @ Ante. From the spot, following recovery was made:- HINDI LANGUAGE 6. Recovery memo was prepared which is exhibited as Ex. Ka-1. On the basis of recovery memo, first information report was lodged which is exhibited as Ex. Ka-2. The I.O. prepared the site plan which is exhibited as Ex. Ka-15. The recovered opium and morphine was sent for chemical examination. The opium examination report is exhibited as Ex. Ka-16, Ka-17, Ka-18 and Ka-19. After completing formalities and recording the statement of the witnesses, the investigating officer submitted charge sheet. 7. Since the matter was triable by sessions, hence, committal order was passed on 12.08.1987 and charges were framed by 6th Additional District and Sessions Judge, Barabanki on 23.02.1988 against the accused Alim, Mohd. Habib, Abdul Mabeed, ShahAlam, Mohd. Azim, Mohd. Halim, Mohd. Akeel, Mohd. Jalil, Mohd. Anis, Mohd. Yusuf, Mohd. Suleman, Mohd. Anis son of Mohd. Bashir, Mohd. Hanif, Abdul Majid, Mohd. Kalim and Lal Mohd. 8. Prosecution to prove its case has produced six witnesses. Habib, Abdul Mabeed, ShahAlam, Mohd. Azim, Mohd. Halim, Mohd. Akeel, Mohd. Jalil, Mohd. Anis, Mohd. Yusuf, Mohd. Suleman, Mohd. Anis son of Mohd. Bashir, Mohd. Hanif, Abdul Majid, Mohd. Kalim and Lal Mohd. 8. Prosecution to prove its case has produced six witnesses. PW-1 Ramesh Prasad Shukla, Station Officer Incharge and S.I. as well as the complainant. PW-2 A. K. Singh hamrahi(associate) who is fact witness. PW-3 Teerath Raj Pandey, Head Constable who has proved chick FIR, PW-4 Constable-595 Dhanpat Lal who prepared docket and took the sample for examination to Gazipur, PW-5 Constable-545 Triyogi Narain Pandey who prepared docket and took sample to Gazipur where sample was not deposited and he took it back. PW-6 Ram Vilas Singh, the investigating officer. 9. The accused in his defence has also produced DW - Mohammad Yasin. 10. Statements of the accused persons namely Suleman, Habib, Mabood, Haleem, Aleem, Ajeem, Lal Mohammad, Anees, Mohd. Haneef, Shah Alam, Kaleem, Mohd. Anees, Mohd. Akeel and Yousuf under Section 313 Cr.P.C. were recorded where their case was of total denial and false implication due to enmity. 11. PW-1 in his examination-of-chief has repeated the prosecution version as narrated in the recovery memo and the F.I.R. In cross-examination, he has stated that at the time of search, seizure and arrest, his rank was of Sub-Inspector. After receiving information, he went to Tikra Village and prior to that he did not go with any officer nor took any authority letter. Information received from the informer was not reduced into writing. He further stated that reference of the same was entered into GD by him and apart from that, he has not reduced anything else into writing. He further stated that GD has not been produced before the Court. He took the search without any search warrant and no search memo was prepared. He further stated that the on the samples which were brought by him to the police station, no seal was affixed of police station. Sample and the mall (seized contraband) remained at police station which was sent to the Court along with the accused. Thereafter it remained deposited in the Malkhana of police station. It was not deposited in Sadar Malkhana as no permission was taken by the magistrate for depositing the alleged contraband. He denied the suggestion that to show good work, false story was made and innocent people have been implicated. 12. Thereafter it remained deposited in the Malkhana of police station. It was not deposited in Sadar Malkhana as no permission was taken by the magistrate for depositing the alleged contraband. He denied the suggestion that to show good work, false story was made and innocent people have been implicated. 12. PW-2 S.I. A.K. Singh has also repeated the same prosecution version as narrated in the recovery memo and the F.I.R. In the cross, he has stated that he does not remember as to who had put seal on the contraband. He does not remember that SO (PW-1) had put any seal or not. He further stated that he had no search warrant. 13. PW-3 Teerath Raj Pandey, Head Constable has stated that on the basis of the recovery memo dated 03.06.1986, an F.I.R. bearing No. 62 was registered as case crime No. 101/1986, under Section 8/18/21/82 NDPS Act. In the cross, he has stated that rawanagi of R.P. Shukla and other police personnel took place on 03.06.1986 at 12:30 hours in the day and was written by A.K. Singh SI in GS. 14. PW-4 is Constable-595 Dhanpat Lal who has stated that while he was posted as Constable at P.S. Jaidpur, he got prepared the docket of sample of Mall along with SI Jagmail Singh for examination after producing it before CJM Barabanki. The docket is exhibited as Ex.Ka-4. He deposited it into Gazipur factory on 24.07.1986 which is exhibited as Ex. Ka-5. In the cross, he has stated that sample of the contraband remained with him and not with the Sub Inspector. 15. PW-5 Triyogi Narayan Pandey in his statement has stated that he took sample of contraband (maal) after receiving it from the police station and went to the CJM for preparing docket and after producing it before the Court, docket was prepared. On that day since it was late, the contraband was deposited in the police station. On 19.06.1986 again he took maal along with docket and sample seal from the police station and went to FSL laboratory Gazipur along with Hamrahi SI Sri Harishankar Singh. He went to Gazipur for examination of the maal where it was examined. On 23.06.1986, he returned from Gazipur and deposited maal along with sample seal and docket in the police station. He further stated that sample was in his possession and was not tampered. He went to Gazipur for examination of the maal where it was examined. On 23.06.1986, he returned from Gazipur and deposited maal along with sample seal and docket in the police station. He further stated that sample was in his possession and was not tampered. In the cross, he has admitted that sample seal is not in the Court record. He was directed by the CJM to take sample to Gazipur since it was late and without any order, he along with said Inspector deposited Maal in the police station and from their on 19.06.1986, he received sample mall, docket and sample seal. He further stated that sample seal is not on the record before the CJM. Maal was not opened. Only sample was opened and the same was again sealed by the CJM. 16. PW-6 is I.O. who conducted inspection of the place of occurrence for chemical examination. Maal was produced in the Court, however, docket could not be prepared. On 03.07.1986, S.I. Hari Shankar Singh got prepared the docket for chemical examination at Agra. On 18.07.1986 again, for preparing the docket, a report was given. On 21.07.1986, the maal was directed to be examined by the commissioner in Gazipur factory again. On 23.07.1986 after preparing docket from the CJM, he took it to Gazipur, but no examination could be done. He filed charge sheet. In the cross, he has stated that there was no time to take search warrant for the place wherefrom recovery was made. He has not taken any document relating to that house. Villagers told him that this is house of Moharram Ali. He does not know the name of villager who told this. He denied the false implication. 17. DW-1 Mohammad Yaseen has stated that at about 12-12:30 hours in the day, four constables came in the village. He was sitting at his door. He sustained some injury in his leg. He was called by them and Haneef was also called by them whose house is in front of his house and they were taken to the north side of the village where some persons were already sitting. All of them were taken to the police station. Since his left leg was injured, therefore, he was not taken. 18. He was called by them and Haneef was also called by them whose house is in front of his house and they were taken to the north side of the village where some persons were already sitting. All of them were taken to the police station. Since his left leg was injured, therefore, he was not taken. 18. Learned counsel for the appellants submits that search and seizure was effected on 03.06.1986 by Sub Inspector/PW-1 of the Police Station on the basis of the information received from the secret informer. It has been submitted that PW-1 was not authorized under Section 42 of NDPS Act read with Rule 77 of UP NDPS Rules 1986. It has been submitted that only Inspector of Police was authorized to conduct search and seizure as per rules framed on 08.10.1986. It is further submitted that Sub Inspector was not authorized to make search and seizure under NDPS Act. Provisions of Section 42 of NDPS Act have not been complied with at all which vitiates the trial. There is gross violation of Section 57 of NDPS Act. It is further submitted that Sections 100 and 105 Cr.P.C. has also been violated. He further argued that link evidence is not complete. Sample was not drawn according to Rule 81 of the U.P. Narcotic and Drug Control Rules, 1986 read with Section 282 of U.P. Excise Manual. Maalkhana register was not produced by the prosecution before the Court. No docket was prepared before the Court and duplicate sample or sample or seal along with original seal was not produced before the Court. No independent witness has been examined. Owner of the house Moharram Ali and owner of the alleged contraband Atik @ Ante have not been produced by the prosecution. 19. Per contra Shri Alok Tewari, learned A.G.A. has opposed the submission advanced by learned counsel for the appellant submitting that information was reduced into writing in the Ravanagi GD. It is a heinous offence. The accused persons have been caught from the spot. Slight defect in the investigation will not be beneficial for the accused. 20. The following questions fall for consideration:- i) Whether prior information received by PW-1 was reduced by him in writing and the same was forwarded to his superior officers? It is a heinous offence. The accused persons have been caught from the spot. Slight defect in the investigation will not be beneficial for the accused. 20. The following questions fall for consideration:- i) Whether prior information received by PW-1 was reduced by him in writing and the same was forwarded to his superior officers? ii) Whether PW-1 who was S.I. at the relevant time was empowered and authorized under Section 42 of NDPS Act read with U.P. NDPS Rules, 1986 Rule-77? iii) Whether link evidence is complete? 21. Section 42 of NDPS Act empowers notified officers of Central Govt. or the State Govt. to entry, search, seizure and arrest. The said section 42 of NDPS Act is extracted below:- 42. Power of entry, search, seizure and arrest without warrant or authorization. iii) Whether link evidence is complete? 21. Section 42 of NDPS Act empowers notified officers of Central Govt. or the State Govt. to entry, search, seizure and arrest. The said section 42 of NDPS Act is extracted below:- 42. Power of entry, search, seizure and arrest without warrant or authorization. (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 intellegence or any other department of the Central Government including para-military 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 VA 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 VA 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 subsection (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.] 22. Perusal of sub section (2) of Section 42 of NDPS Act shows that the officer has to take down information received by him in writing under sub section (1) of Section 42 and within 72 hours shall send a copy thereof to his immediate officer superior. 23. A perusal of the statement of PW-1 who has received the information on that day i.e. on 03.06.1986 at about 11 am at police station shows that in his chief he has stated that he has not reduced information into writing, though, he has said that he has mentioned it into general diary of the police station and that general diary has not been filed in the Court. Thus, it is clear that information received by PW-1 under proviso to sub section (2) of Section 42 NDPS Act has not been reduced into writing. PW-1 also nowhere has stated that such information received by him has been forwarded to his superior officer. 24. Supreme Court in Boota Singh v. State of Haryana, 2021 SCC OnLine SC 324, has held that total non-compliance of Section 42 cannot be accepted. Para 14 of the said judgment is extracted below:- “14. What Section 42(2) requires is that where an officer takes down an information in writing under sub-section (1) he shall send a copy thereof to his immediate officer senior. The communication Ext. P-15 which was sent to the Circle Officer, Nohar was not as per the information recorded in Ext. P-14 and Ext. P-21. Thus, no error was committed by the High Court in coming to the conclusion that there was breach of Section 42(2). 25. Likewise in "State of Rajasthan v. Babu Lal, (2009) 14 SCC 215 , it was held by the Supreme Court that since the provisions of Section 42 sub section (2) of NDPS Act were not complied with, therefore, the Supreme Court refused to entertain the appeal of the State Govt. against the acquittal order passed by the High Court and order of the High Court was affirmed. In "Karnail Singh Vs. against the acquittal order passed by the High Court and order of the High Court was affirmed. In "Karnail Singh Vs. State Haryana, reported in (2009) 3 SCC (Cri) 887", in para 35-C and 35-D, it was held by the Supreme Court that compliance of section 42(1) and 42(2) of NDPS Act with regard to writing down the information received and sending a copy thereof to the superior officer should normally precede the entry, search and seizure by the officer. But, in special circumstances where there are emergent situations, the relaxation of postponing the said action by the police officer for a reasonable period was given, however, it was held that the total non-compliance of requirement of sub section (1) and sub section (2) of section 42 of NDPS Act is impermissible. The relevant para no. 35-C and 35-D are extracted below:- 35(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act of 2001. The Supreme Court in "Sukhdev Singh v. State of Haryana, (2013) 2 SCC 212 " in para 25 has held that where there is total non-compliance of Section 42 of NDPS Act, it is a patent illegality in the case of prosecution and also held that such illegality is incurable. Relevant para 25 is extracted below:- 25. There is patent illegality in the case of the prosecution and such illegality is incurable. This is a case of total non-compliance, thus the question of substantial compliance would not even arise for consideration of the Court in the present case. The twin purposes of the provisions of Section 42 which can broadly be stated are that: (a) it is a mandatory provision which ought to be construed and complied with strictly; and (b) compliance of furnishing information to the superior officer should be forthwith or within a very short time thereafter and preferably post-recovery (sic prior to recovery). 26. Thus, from perusal of the prosecution case and the statement of PW-1, it is clear that neither the information received by PW-1 in the police station at 11 am was reduced into writing nor the same was sent to any officer superior to PW-1. Hence, in view of the Constitution Bench judgment in the case of Karnail Singh (supra) as well as other judgments referred herein above, it can be safely said that on this ground alone, the judgment of the trial court is liable to be set aside. 27. It is significant to note that Section 42 sub section (1) empowers any officer being superior rank to peon, sepoy or constable of the various departments of central Govt. or of any revenue, drugs control, excise, police or other departments of a State Govt. as is empowered in this behalf by general or special order of the State Govt. to enter, search, seize and arrest in the NDPS Act. or of any revenue, drugs control, excise, police or other departments of a State Govt. as is empowered in this behalf by general or special order of the State Govt. to enter, search, seize and arrest in the NDPS Act. However, in this case, as argued by learned counsel for the appellants, there was no general/special order of the State Govt. in that regard authorizing PW-1 to enter, search, seize and arrest the accused persons. 28. A perusal of the statements of PW-1 shows that when he took the search and made the arrest, he was Sub Inspector. The incident took place on 03.06.1986; the State Govt. promulgated the Uttar Pradesh N.D. Rules, 1986 on 8.10.1986, however, vide amendment made on 17.10.1989, Rule 77 was amended and for the first time Sub Inspector of Police Department of State of U.P was authorized to act under Section 42 of the Act. Rule 77 of 1986 Rules is extracted below:- "77. Power of entry, search, seizure and arrest without warrant or authorisation.- Any Officer of the Excise or Police Department not below the rank of Inspector or of the Police Department not below the rank of Sub-Inspector or of the Drug Control Department not below the rank of Inspector or of the Revenue Department not below the rank of Tahsildar may exercise the powers under Section 42 of the Act." 29. The amendment made in 1989 by the State Govt. in Rule 77 of 1986 Rules being prospective in nature makes it clear that PW-1 who was Sub Inspector at the time of incident which took place on 03.06.1986 was not authorized under 1986 Rules to act under Section 42 of NDPS Act. Thus, the entire search, seizure as well as arrest is vitiated since the beginning in this case. 30. In Kamlesh Pratap Singh Vs. Superintendent of District Jail, Lucknow and others, Habeas Corpus petition No. 1323 of 1987, this court, vide its judgment and order dated 12.08.1988 has held that Sub Inspector before the amendment of Rule 77 of 1986 Rules was not empowered to act under Section 42 of NDPS Act. This preposition of law has been followed by another Bench of this Court in "Shyam Kumar v. State of U.P., 2007 SCC OnLine All 1784". Relevant para 12 of the judgment is extracted below:- 12. This preposition of law has been followed by another Bench of this Court in "Shyam Kumar v. State of U.P., 2007 SCC OnLine All 1784". Relevant para 12 of the judgment is extracted below:- 12. Therefore, only the rank of Inspector in police department was authorised to take search and seizure under section 42 of N.D.P.S. Act at the time of alleged incident. P.W. 3 S.O. who was arresting officer, was admittedly sub-inspector, his companions were also sub-inspector and head constable and home-guards etc., they were not authorised to take search of the appellant at the time of alleged incident under section 42 of, N.D.P.S. Act. Therefore, such search and seizure was illegal. It was also held by Hon. Mr. Justice Kamleshwar Nath, judge of this Court. Lucknow Bench in case of Kamlesh Pratap Singh v. Superintendent of District Jail, Lucknow that “Sub-Inspector of Police, not competent to arrest for offences under sections 8 and 20, whether covered by section 42 or 43 Cr. P.C. 197, sections 4(2) and 5-Constitution of India, Article 21.” After delivering this decision, amendment was made in Rule 77 which was applicable since 8.10.86. It is not applicable with retrospective effect. Therefore, above decision in case of Kamlesh Pratap Singh v. Superintendent of District Jail, Lucknowis fully applicable in the case and Sub-Inspector of police was not competent to arrest for the offence as above and he was also not competent to make search and seizure regarding contraband article. There fore, contention of learned Counsel for the appellant has great force. 31. The judgment in Kamlesh Pratap Singh (supra) was further relied in the judgment of Uttrakhand High Court in Nandan Singh Vs. The State, reported in 2008 (3) UC 1758 . 32. In the opinion of this Court, for launching prosecution or for initiating the proceedings under Section 42 of the NDPS Act, PW-1 who was Sub Inspector at that time was not an empowered officer as mentioned therein to act under Section 42 NDPS Act. It is only after the amendment in Rule 77 of 1986 Rules on 17.10.1989 for the first time, the Sub Inspector was empowered. Rule 77 of 1986 Rules being not retrospective in nature; rather it is prospective makes the search, seizure and arrest of the person contrary to the NDPS Act. 33. It is only after the amendment in Rule 77 of 1986 Rules on 17.10.1989 for the first time, the Sub Inspector was empowered. Rule 77 of 1986 Rules being not retrospective in nature; rather it is prospective makes the search, seizure and arrest of the person contrary to the NDPS Act. 33. From perusal of the evidence on record, it is alleged by the prosecution that sample was drawn on spot on 03.06.1986. It is further alleged that it was deposited in Malkhana along with recovered contraband. It was sent to the Court at the time of remand, however, perusal of the statement of PW 6 at page 44 of the paper book shows that although the contraband was produced before the Court, however, the docket could not be prepared. Again the docket was prepared on 18.06.1986 in the Court of CJM and after taking the sample Sub Inspector Harishankar Singh along with mall and docket went Gazipur for chemical examination of the sample. He returned back on 30.06.1986 and told that in Gazipur, only afeem is examined. On 03.07.1986, again docket was prepared for examination at Agra and again on 23.07.1986, the docket was prepared and was taken for examination and he came with the examination report on 25.07.1986. 34. On the contrary, PW-5 at page no. 39 has stated that on 17.06.1986 docket was prepared and was again taken from the concerned P.S. The contraband along with docket and sample seal was taken to the laboratory for chemical examination and returned on 23.06.1986 and sample was not deposited. On the other hand PW-4 Dhanpat Rai at page No. 36 has stated that the docket was prepared on 23.07.1986 and was deposited on 24.07.1986 at the examination centre and on 25.07.1986, the report was given and he returned on 26.07.1986 to the police station and deposited it at the police station. Thus statements of all three witnesses PW-4, PW-5 and PW-6 are quite contrary. No link evidence has been produced. Although the incident is of 03.06.1986, the sample has been sent for chemical laboratory on 24.07.1986, that too after inordinate delay. The Malkhana Register is neither signed nor proved. It has also not been proved as to on what occasions, the sample was drawn and when it was deposited. The sample seal has also not been proved. Although the incident is of 03.06.1986, the sample has been sent for chemical laboratory on 24.07.1986, that too after inordinate delay. The Malkhana Register is neither signed nor proved. It has also not been proved as to on what occasions, the sample was drawn and when it was deposited. The sample seal has also not been proved. The original seal has neither been given to the independent witnesses nor it has been deposited in the Malkhana. 35. In State of Rajasthan Vs Gurmail Singh reported in 2005 (1) JIC 844 (relevant in para 3), it was held by the Supreme Court that since Malkhana register was not produced and no sample of seal along with sample of excise laboratory was sent for comparison, link evidence was missing and therefore, the acquittal order passed by the High Court was upheld. Relevant para 3 is extracted below:- "3. 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 20-5- 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 5-6-1995. We further find that no sample of the seal was sent along with the sample to the 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." Similarly in "Valsala v. State of Kerala, 1993 Supp (3) SCC 665" (para 4), it was held by the Supreme Court that the seized articles have not been kept in proper custody and proper form so that the Court can be sure that what was seized only was sent to the chemical examination. Big gap and the missing links were also noted while setting aside the conviction of the accused under Section 21 of the NDPS Act. Para 4 of the said judgment is extracted below:- 4. Big gap and the missing links were also noted while setting aside the conviction of the accused under Section 21 of the NDPS Act. Para 4 of the said judgment is extracted below:- 4. We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be brown sugar. But from the records it is clear and it is also noted by both the courts below that the seized article was produced in the court only on January 14, 1988 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of PW 6, the Officer in charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the State no doubt argued that the provisions of Section 55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link. In the mahazar Ex. P-2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even PW 6 does not say that he continued to keep it in his custody under seal till it was produced in the court on January 14, 1988. The evidence given by PW 6 Police Sub-Inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the court. As a matter of fact he did not produce it in the court. PW 3, A.S.I. is supposed to have produced the same in the court. But PW 3 does not say anything about this. As a matter of fact he did not produce it in the court. PW 3, A.S.I. is supposed to have produced the same in the court. But PW 3 does not say anything about this. It is only PW 7 the Circle Inspector who comes into the picture at a later date, who admitted in the crossexamination that the seized article was sent by PW 3 (A.S.I.) to the court and PW 7 in his cross-examination further admitted that he did not even see if the recovered material object was sealed but still he claims that he made the necessary application for sending the material object for chemical examination and it is only through PW 7 that the Chemical Examiner's report is marked. PW 7 further admitted that he did not even know when it reached the court. We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. Therefore the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to the Chemical Examiner. Though this is purely a question of fact but this is an important link. Both the courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the courts cannot convict. 36. Thus, from the discussions made herein above, it is evident that PW-1 who was admittedly the Sub Inspector at the relevant time was not authorized to act under Section 42 of the NDPS Act as the notification amending Rule 77 of 1986 Rules empowering the Sub Inspector of U.P. Police to act and exercise the powers under Section 42 of the Act came into effect on 17.10.1989. The arrest, search and seizure admittedly was prior to that. Precisely on 03.06.1986, PW-1 was not competent to act and exercise powers under Section 42 of the Act. The act of PW-2 was ultra-virus and accordingly, the entire entry, search, seizure and arrest made by PW-1 and the team was in defiance of Section 42 of the Act and as such has vitiated the entire investigation. 37. Likewise, there is total non-compliance of Section 42 sub section (2) of 1985 Act. The act of PW-2 was ultra-virus and accordingly, the entire entry, search, seizure and arrest made by PW-1 and the team was in defiance of Section 42 of the Act and as such has vitiated the entire investigation. 37. Likewise, there is total non-compliance of Section 42 sub section (2) of 1985 Act. PW-1 has not reduced information received by him in writing, although, there was ample time as the information was received according to the statement of PW-1 at 11 am and the raid was conducted at 1:05 pm. Thus, there was ample opportunity and the time with PW-1 to record information in writing, which he did not do so and therefore, in view of the judgments referred to herein above, there is total non-compliance of Section 42 of 1985 Act and thus, in view of the Constitution Bench Judgment of Karnail Singh (supra), the entire investigation is vitiated. Lastly, the link evidence is also missing. The prosecution has failed to prove its case beyond reasonable doubt. 38. In view of the discussion made herein above, the appeals are allowed and the judgment dated 19.4.1994 (supra) is set aside. The appellants are acquitted of the charges levelled against them. They are on bail. Their bail bonds are discharged. 39. Let a copy of this order be sent to the District Judge, Barabaki along with the lower court's record. A copy of the judgment be also sent to the concerned Superintendent, Jail, immediately. 40. A copy of this order be also placed on the record of each of the connected appeals.